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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.
I'm not being dumb here, it is just completely unobvious to an international reader what the issue is.
They clearly weren't parodying Strawberry Shortcake
Isn't it possible that they were actually parodying both? That's the impression I got from the comic. They were making fun of both American McGee's game style and of Strawberry Shortcake. If this is the case then there is no way American Greetings would win a lawsuit unless Penny Arcade couldn't pay to represent themselves.
Aside from the usual "don't buy anything from these people," it seems the easiest and surest way to get the word out is to refuse any mail with AG's logo on the envelope. Just write "Refused, return to sender" along with a note on the envelope that says something to the effect of "Nothing personal, I'm just boycotting the publishers of this card."
Just a few problems here...
- Even if they successfully defend themselves against AmGreet, I don't see how they'd get much compensation for damages... legal costs aside, how much money have they lost here?
- You... do have a passing familiarity with the American legal system, right? You know how lawyers cost a LOT of money, and trials take a LONG TIME and get appealed a lot? And you know how you don't get paid until the end, even if you win? I don't know that the PA guys have tens of thousands of dollars sitting around that they don't need for the next couple of years, when the court stuff would be finished and they'd possibly get paid.
- If PA somehow lost, they might be totally bankrupt. So they have to weigh the very small potential gain agsint the very large potential losses they'd face.
Truthfully, when it comes to having "backbone", probably the most effective way to get back at AmGreet is to make them look stupid and maybe encourage a boycott and letter-writing campaign. PA has thousands of readers; I don't know that a PA-reader boycott of AG would really make a dent in their bottom line (in face I'm sure it wouldn't) but if they see it's costing them money and letters start pouring in, perhaps AmGreet will back down.OtakuBooty.com: Smart, funny, sexy nerds.
Uh, I've got some money ($2.50). And I hate corporations. PA is just one paypal button away from a legal defense fund of massive proportions.
IANAL, but i do have some experience in these kinds of cases.
The traditional protection of a work of parody does not, in this instance, protect Penny Arcade. The protections of parody and satire only protect the material being parodied. In this case, the subject of the parody was no Strawberry Shortcake, but rather, American McGee's Alice and Oz games. American Greeting's property was being used to parody something else. Therefore, it's not protected.
This test has been held up in a number of cases, mainly involving the sale of parody t-shirts and the like.
Penny Arcade was poking fun at American McGee's treatment of other worlds (eg. Alice, Oz), not at the Strawberry Shortcake world. Strawberry Shortcake was a means to an end. It could have been replaced by Pooh or the Smurfs with the same effect. The joke, to me, was the darkening retale of percieved lighthearted, children's stories.
In his own comment on April 21, 2003 Tycho provides a link to other court cases and specifically mentions "Dr. Seuss Enterprises Vs. Penguin Books" on page three as possible precident that would work against Penny Arcade.
That is not to say what PA did was and should be illegal. It's simply not clearly parody. It's something that would require extensive (expensive) legal processes.
> However, because they're using a third party's
> intellectual property in the context of the
> parody,
But they raise a good point in the text-based update, which the slashdot story didn't link to.
Basically there's certain icons that are corporate brands which have, basically, become integral parts of our society today. Mickey Mouse, McDonald's, Microsoft.. I mean the list is infinite in length, an encompasses things from niche appeal to mass appeal. Almost EVERYTHING we identify with in this day and age is some marketing symbol owned by a huge corporation.
So at what point should us people, who have accepted these icons into our society, be allowed to use them as vessels for communcation without risking legal action?
If this were a world run by idealism, wouldn't one think that after a symbol becomes so homogenized that it's a part of daily conversation that corporations should lose the right to prosecute for people using it as part of their speech?
It's something to think about anyways.
If you want to support the guys at Penny Arcade, check
- 04 -14
http://www.penny-arcade.com/view.php3?date=2003
Which was the former location of the Strawberry Cupcake comic. They have an email address at American Greetings there instead if you have comments. Namely, Rinda.Vas@amgreetings.com
The original strip was a parody of both Strawberry Shortcake AND American McGee. It would have done NO harm to the image of either party, as they are obvious take-offs on aspects of the other.
Had I been a legal eagle at American Greetings, I would have replied by getting one o' my art guys to draw up a Strawberry-esque Tycho and Gabe with the following layout:
Panel 1:
Tycho: We use DIRTY words.
Panel 2:
Gabe: MUCK!!
Panel 3:
Both: tee hee!
The only image tarnished by this whole affair is that of the overly-litigious facist dorks who thought a suit would be a good idea.
> A: because then american mcgee would sue them.
B: For stealing a game idea before he had a chance
to license the character from American Greetings.
IMO, the funniest thing about the SS parody was;
in an age when Grand Theft Auto and Postal 2 can
generate interest among gamers, a naughty
Strawberry Shortcake might actually sell.
if everybody submits their $.02, then maybee Penny-Arcade can get the legal help they need. I have submitted a "story" for just this, to set up a paypal donation fun so that those interested can give a little to help a lot. Not only do i really love these guy's comic, but I very much wish to retain free speech and fighting this crap is the only way to retain it.
I think park of the problem is that they drew a parody of Strawberry Shortcake, and then labeled it as such. Thus the copyright holders (American Greetings) are forced to protect their trademark or risk losing it. If Penny Arcade had called their character "Strawberry Sh!tcake" in the cartoon, none of the involved parties would have a problem.
Freelance writer John Scalzi brings up an interesting point that I haven't read here:
American Greeting's argument here could be that Penny Arcade's image is using the Strawberry Shortcake name to parodize American McGee's tendency to appropriate young female literary characters for his dark and bloody video games, not Strawberry Shortcake herself. Therefore, using Strawberry Shortcake for that purpose is not covered under parody. It's an interesting assertion.
However, I wonder if this line of reasoning, if indeed it is the one American Greetings is using, is as strong as it might appear initially. This line of reasoning works only to the extent that Strawberry Shortcake herself does not fit the rubric that the Penny Arcade is parodizing, namely that Strawberry Shortcake is not a young female literary character. In fact she is, the main character in dozens of books: Strawberry Shortcake: Meet Strawberry Shortcake, Strawberry Shortcake at the Beach, Strawberry Shortcake: The Berry Big Storm, and Happy Halloween, Strawberry Shortcake are just some of the titles in her oeuvre. And in an interesting literary note, in several of these titles, Strawberry Shortcake is either planning or having a party of some sort or another, which makes her activity in the parody (planning a party with her friends) not an atypical activity for her. Although to be fair she's not typically whipping her friend Plum Pudding at those parties. But that's part of what makes it a parody.
I don't know if this point holds any water, legally speaking, but it's interesting. You can read the rest of the article here
-Spyder
Like many people, I have a strong love-hate relationship with Larry Flynt and Hustler magazine. I love his willingness to fight to protect our rights from attacks by the easily offended, even while finding much of the content of his magazines personally repugnant.
Anyway, one quick phone call or email should end this matter real quick. How many people have seen this online strip, vs. how many people would see similar strips in that magazine? How much money is AG willing to spend to harrass a couple small-time artists, vs. how much money is it prepared to spend defending itself from a company that's successfully argued Freedom of Speech cases before the Supreme Court?
Call me crazy, but I don't see a lot of crossover in the consumers of <i>Hustler</i> and sappy greeting cards so the magazine can fight hard and fight dirty if AG wanted to fight them. Hell, I wouldn't put it past them to launch their own lines of parody greeting cards (real greeting cards, not just jokes in the magazine). I mean, where else are you going to find the perfect Valentine card for the girl who dumped you for your best friend, or for your former boss?
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
About 15-20 years ago National Lampoon magazine had a very funny (and rather pornographic) fold out titled "Strawberry Cheesecake" and it had a smurf with 3 day facial hair smoking a cigarette and strawberry shortcake. It depicted a slutty looking stawberry shortcake getting it from behind from said smurf. I'm not kidding, I as a very young'un thought it was hilarious.
Google searches failed to turn up the picture.
I remember one particular issue featured a full-page illustration of a Smurf holding the waist of a grimacing Strawberry Shortcake while smurfing her from behind.
I found a web reference here, but no picture...
In a matter of THIS nature, there is a stack of caselaw about 1.5 inches high that I will assure you any lawyer who has passed the Bar Exam is VERY familiar with, and ALL of those cases say that parody falls within the realm of free speech.
Really? They don't have parody doctrine on the bar in my state, and I can't think of many law schools which require a First Amendment course.
All employees must wash hands before seeking equitable relief.
Did anybody catch this link from the PA forumns?
g if
http://www.somethingpositive.net/arch/sp08202002.
I don't think they ever had to stand up for their rights.
Morphing Software
And it's also spreading, I think that that this is even better cartoon about the topic:
Ghastly's Comic
V.
Of course it was.
The reason American McGee goes after the PARTICULAR public domain works he does, is that WE ALL GREW UP WATCHING THEM. Think about it -- until two years after Home Alone was out, what movie was played EVERY SINGLE THANKSGIVING? Why, the Wizard of Oz of course. What was one of the fundamental Disney movies that everyone loves seeing and showing kids to this day? Their take on Alice in Wonderland, naturally.
American McGee makes his living raping the public domain (er... actually literally) just as Disney does, and he goes after the things that we STILL remember that are in the public domain. Without something we all remember, the gag doesn't work. Further, it has to be something he can twist really, really far.
Parodying Disney stuff might have worked, but that's inviting legal action far more surely than parodying some piece of crap like Strawberry Shortcake. Besides, there are artists who already make a living drawing Disney toons having sex, so that's been done.
So they parodied something we've all been taught was "sweet" and "innocent." American Greetings, on the other hand, happen to be a bunch of stiffs who can't take a joke.
Hell, even the Hormel people realized after their first court filing that Monty Python had done a pretty good job with the spam song and got a sense of humor. Time to ring the phones of American Greetings off the hook to give them a whack with the metaphorical cluebat.