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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.
At least they have a smile on their face as they get bent over...
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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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"American Greetings.. you will never find a more wretched hive of scum and villainy." sorry.. watched Star Wars last night.
Trolling is a art,
The problem is that they were parodying American McGee by using a registered trademark. They clearly weren't parodying Strawberry Shortcake - if they were, it would be more clear cut. Not that we wouldn't see a C&D letter anyways...
:)
For the record though, I love PA and hope they make it through ok. And you just have to respect em for making a stink even if they did pull the offending strip originally. They're as subtle as a heart attack
Robots are everywhere, and they eat old people's medicine for fuel.
Today's PA comic
"BSD: Free as in speech. Linux: Free as in beer. Windows 10: Free as in herpes." --Man On Pink Corner in #52607549.
...where things are only legal if you can afford to pay as much as the ass suing you to defend yourself in court.
This sig is worse than my last.
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
Not representing or approved by my company or anybody else.
American Greetings currently (I think) holds the copyright for Strawberry Shortcake. If you click on one of the mirrors, you'll see Penny Arcade's take on American McGee's *next* game, in which Ms. Shortcake is quite the little sadist.
So American Greetings is essently protecting their copyrights to Strawberry Shortcake. Groundlessly, because as the article stated, it's a work of parody. The funny thing is, it's *supposed* to be a poking fun at American McGee. I'm sure PA was prepared for any backlash from them. Getting hammered by a greeting card company probably surprised PA quite a bit.
And, to top it off, PA is now getting hit with a slashdotting, as if PA didn't already have bandwidth problems!
"Times have not become more violent. They have just become more televised."
-Marilyn Manson
I looks like they're seeking legal aid from the Comic Book Legal Defense Fund. If the little guy can't defend himself in court against the big boys, then there should be someone else who can. They also protect Japanese and American manga artists and sellers. I joined, and so should you.
"Anonymous Coward" is for whistleblowers, not unpopular opinions.
For general information on curbing all sorts of lawsuit abuses across the country, you might want to take a look at the American Tort Reform Association.
Lawrence Person (lawrencepersonh@gmailh.com (remove all "h"s to mail)
http://www.lawrenceperson.com/
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.
This sig no verb.
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.
I did my patriotic (read-rabid PA fan) duty, and wrote Miss Rinda Vas a letter, telling her what bad idea this all was and everything. I got a fairly swift response, including an "original" letter written to the PA staff. Email addresses have been removed to protect the innocent...
... fyi ...
Email sent Wed. 4/23--
there is no legal action against them
-----Original Message-----
From: RV Rinda Vas (1328)
Sent: Wednesday, April 23, 2003 9:32 AM
To: Subject: RE: Trademark infringement, misuse
Thank you for your immediate attention to this matter. We note that the
cartoon has been removed.
I am receiving a good amount of e-mails from the penny-arcade subscribers
asking why American Greetings asked you to pull the cartoon. Unfortunately I
do not have the resources to respond to them individually so I am passing
the answer on to all of you. On April 17, 2003, American Greetings received
a complaint about the cartoon namely that it was "creepy" and "offensive."
Thereafter, we asked you to remove it.
Note that the target audience for Strawberry is young females (indeed young
children). And we do receive complaints from parents and the like over
cartoons like yours.
So there you have it.
-----Original Message-----
From: Ryan
Sent: Wednesday, April 23, 2003 3:55 PM
To:
Subject: Please Cease and Desist
Dear Rinda Vas-
I am writing to you, as I am sure are many others, to implore you to stop
your legal action against Penny Arcade and its creators. As you may or may
not be aware, the actions your company has taken against Penny Arcade has
already publicized the original event much more than the comic's web site
ever would have. Furthermore, several websites have made note of this
issue, spreading the issue to more people, not usually associated with the
normal Penny Arcade crowd. Feel free to read the articles posted on
http://slashdot.org, and other such sites. At Slashdot, you will see the
forum that follows every article. Within said forum, you will note a
resoundingly negative response to your decision to take legal action. There
is even a petition out to boycott your company. The last time I checked
that site, the petition was drawing near the 10,000 mark, and climbing.
I am not going to threaten you, or swear at you, as I am sure many others
are doing, regarding this issue, but I have to advise you that, from all
evidence available, what you are doing does not seem like a smart move. I
think you might do well to look into options for reaching a quiet agreement
with the owners of Penny Arcade. I am sure they will be happy to make this
legal action go away with as little public notice as possible. My advice to
you is to try to save face, as your company stands to lose a large amount of
business and public appeal by pursuing this petty issue. Thanks for your
time.
Ryan
Raging in an online forum won't do anything for the world around you. To see change, you must take action.
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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Open Source Sysadmin
It's not funny. Violates the cardinal principle of comics.
I think the author of Family Circus would like to have a word with you.
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
According to the USPTO website, the Strawberry Shortcake mark is owned by "Those Characters From Cleveland, Inc." Those Characters From Cleveland appears to license their marks to American Greetings or is a subsidiary. I haven't found a page that explicitly mentions their relationship. (Note: I think USPTO query links 'expire.' You can always search again using TESS.
According to this link, it looks like American Greetings, Those Characters From Cleveland, and Rinda Vas have previously gone after alleged violations of their marks. (In the linked page, the case appears to be a reasonable attack against a domain squatter.)
--JoeProgram Intellivision!
You sent us a Greeting
/open cover to greeting card
That said Cease and Desist
So we give you "The Finger (TM)"
(we couldn't resist)
The "Red Bitch" has been mirrored
Like DeCSS
We just thought we'd share
(or is it confess)
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Fuck You
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
Polymer City Chronicles is doing it too...
"There are people who do not love their fellow human being, and I _hate_ people like that!" - Tom Lehrer
However, in this case, there is an avenue available: The Penny Arcade guys could represent their side of the case in court. Ergo, no censorship has taken place. That they don't have the money to do so is a different issue.
So if I tell you to stop talking under threat of me shooting you, I'm not really censoring you since you always have the option of dodging the bullet. That you can't dodge bullets is a different issue.
I'm sorry, but in the case of theory (they could fight it in court) versus reality (they don't have the resources to fight it, even if they would eventually win), reality is what determines if censorship is taking place.
The mentality that something being technically possible is equivalent to it being possible has been used in the past to remove peoples' rights. Literacy tests in the south were used to prevent blacks from voting, even though technically they still had that right. Just like that was found to be an illegal restriction on their right to vote because of the reality that virtually no blacks were allowed to vote, this is a case of censorship.
Or in short: Free speech that costs more than you can afford to exercise isn't free, is it?
The enemies of Democracy are