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Penny Arcade vs. American Greetings Revisited
Jojo writes "After American Greetings got some lawyers to bring down a Penny Arcade strip (M
i r r o r) last week, PA is now striking back.. IANAL, but I fear their latest strip might get them into real trouble this time." As always, PA cracks me up, but these are scary events. The banned strip is clearly a work of parody, which I believe is still legal in this country, unless that too changed recently.
The banned strip is clearly a work of parody, which I believe is still legal in this country
It's clearly a parody, and would certainly hold up in court (IANAL), but the problem is that the PA guys don't have money to spend defending themselves in court. So it's another case of the "big guy" successfully squashing the "little guy" with the thread of a baseless lawsuit, because the cost of fighting is beyond the little guy's reach.
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And, "banned"? How so? This is yet another case of lawyers writing a cease-and-desist, and the recipients capitulating. Nobody got "censored" here, nobody's free speech was infringed.
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I actually came away with the opposite feeling. While the first strip was clearly a parody, it was a parody of American McGee, and not a parody of American Greetings. They'd probably have a strong legal leg to stand on if McGee came to them with a lawsuit.
... Spaceballs parodying Star Wars with a title character named Strawberry Shortcake might be a different story.
:).
However, because they're using a third party's intellectual property in the context of the parody, it's a little fuzzier. Spaceballs parodying Star Wars is cool
The more recent strip, however, is clearly a criticism of American Greetings' policies, and seems more obviously "safe" under various free-speech umbrellas than the first one. It's not even using any of their IP.
I also think it's funnier, but that's just me
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Is it totally unacceptable to parody *several* things simultaneously? That seems a bit short sighted, no?
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The comic in question is (should I say "was") humorous precisely because it's a parody of Strawberry Shortcake.
In the post along with the strip the PA people went out and said that they were parodying McGee. But whether they said it or not, they're also parodying Strawberry Shortcake, playing on her goody-goody image.
The guy on PA makes a good point in his post on their site. Strawberry Shortcake is part of the American lexicon. Just like Gargamel or GI Joe or Speed Racer.
Referencing these characters shouldn't be trademark infringement.
My thoughts? I don't like the strip - I find it tasteless. But one of the tenets of free speech is to defend even those who you don't like - because if they censor them, it's only a matter of time before they censor you. As such, I'd hate to see these guys go down like this.
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I do believe that if my mother sent me a greeting card, and I REFUSED, RETURN TO SENDER'd it, I would get my ass kicked.
What a lame ass thing to take a stand on.
Explain how transforming characters from a toy line for young girls into the stuff of male adolsecent fantasy istn't parody.
As far as I can tell, showing the characters as the exact opposite of everything they are marketed as is a pretty clearcut case of parody.
Are you offering to foot their legal bills?
Didn't think so. The image has been archived and mirrored, and nothing AG's laywers can do will be able to stop people from finding the image, even if it's not at the PA site.
Gabe and Tycho might win a legal battle after spending lots of time and money they don't really have or want to spend, but that seems like a Pyrrhic victory to me, and to them, I think. Tycho said as much in the latest post.
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The censorship is : you risk to loose or have a lot of money to be "frozen" for a time, to get a lawyer to defend you. If you do not have the deep pocket of a big company then this money would be a murderous move on your budget.
Thus you have no choice. Temporair ruin and blocking of asset (if oyu win AFAIK you get your money back) or take back your opinion/strip/whatever.
Censorship isn't only governemental and law enforced, and you do not need a gun to force censorship on somebody. Merely inconvenience them to the extrem, put them in a difficult position, which nmight make their life a hell and most except idealist will bow. This is also censorship.
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Because if you were, then you'd be taking far more time to make yourself familiar with the particulars of the case. Indeed the work was a parody. However American Greeting does not represent American McGee, the video game developer who is/was being parodied. American Greeting takes issue with their Stawberry Shortcake character. Mike and Jerry have a far more difficult case to argue if they want to keep their picture online. Notably, McGee has only been trolling the works of the public domain, specifically, Alice in Wonderland and The Wizard of Oz.
The question isn't about parody and fair use, but whether Strawberry was parodied. I personally don't see it in the work. In fact, if I were PA I'd simply remove the cartoon and revise it such that a far better case could be made that it parodies both McGee and whatever character that best adopts to these legal requirements.
Mike and Jerry have been fairly quiet about the particulars of it themselves, having been wisely told by legal advisors with more wisedom than yourself, or at least more current experience. The only thing they do say is that it isn't very clear -cut, and they're right.
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It seems the basic concept of a boycott is lost on people. Folks, the idea here is to deprive the company of revenue. Your Mom already bought the card, it will not hurt the company one bit to send a card back that she sent you. That is as stupid as purchasing French wine and dumping it on the sidewalk in protest of the French. They already sold the wine could care less if you drink it.
If your goal is to educate your Mom (or whoever else sends you cards) about AG, perhaps you can find a less offensive and heartless method of getting your message out.
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So someone was offended by a PA comic and complains to American Greetings???
Here's the problem with America: people have no sense of responsibility for themselves. If you have an issue with a PA comic, complain to PA, don't complain to American Greetings so they will fight your battle for you.
AG should have no say over what PA posts on their site unless it legally has no right to be there. You can't hold one group accountable for another group's opinions.
Attitudes like yours are exactly why rights get trampled. People who can't be bothered, don't want to raise fuss, don't want to become targets for the authorities, etc...
Penny Arcade did nothing to violate the copyrights or tradmark rights of American Greetings - like mentioned earlier, parody is permitted, and the strip was clearly a parody. Imagine if Mad Magazine had rolled over the first time they were threatened with legal action, or if SNL stopped their knock-off commercials because of a couple complaints from lawyers. Today they target Penny Arcade, tomorrow they're after Craig Kilbourne... once it starts, where does it stop? Comedic impersonators dropping their trade because they're threatened with libel suits? Florida exiling Dave Barry for defamation of state character?
This is a very interesting point. American McGee might have stupid ideas according to some, but he darkens tales that are in PUBLIC DOMAIN.
I think this is a perfect example of you how Disney's lobbying for de facto indefinite copyrights has destroyed what copyright was supposed to be about in the first place.
Baum had the opportunity to profit off of his Oz works back in the early 1900s. His books were popular, and now the stories have fallen into a place where they have literally become a staple fairy tale, As far as I know the original stories and concepts themselves are now PUBLIC DOMAIN, where they SHOULD BE.
But now things that should enter public domain will never be, thanks to Disney. Whenever Mickey is in danger of becoming public domain (like he should be right now), Disney will pay off some congressmen to extend the copyright laws again.
If this continues, 100 years from now people we will have no NEW stories like Oz or Alice in Wonderland that they can work with freely. Everything will still be copyrighted because the copyrights will now continue to be extended. Every story people grew up with will be still be owned by Disney or another faceless media corporation.
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