Fight it out Guys! Go for Broke!

April 23, 2003 11:22 AM

Penny Arcade,everyone's favorite gamegeek comic strip(well, not everyone's, but mine) is facing legal action over a recent strip they did, parodying Strawberry Shortcake. It seems American Greetings owner of such 80s icons as Popples and the aforementioned Shortcake, don't take too kindly to folks using their precious nostalgia. Here's the offending cartoon.
posted by hughbot (30 comments total)

I sure wish the cartoon were funny. It would then be much easier to be outraged.
posted by argybarg at 11:25 AM on April 23, 2003

Eeep. Here's the Slashdot thread where I found out about it. Please don't flunk me for forgetting to cite my sources.
posted by hughbot at 11:27 AM on April 23, 2003

I only occasionally find PA funny, this case being no exception (ok, I chuckled a bit).

Note To Non-Gamers: If you don't know who American McGee is, or the kinds of games he has done, there is no way for you to find this funny.
posted by malphigian at 11:36 AM on April 23, 2003

I'm not a lawyer, but I have talked to lawyers about trademark law. My understanding of it is that if you don't enforce your copyright / trademark, you can lose your copyright / trademark.

This looks like a job for the Comic Book Legal Defense Fund!
posted by Stuart_R at 12:03 PM on April 23, 2003

I'm a non-gamer, but I DO know who American McGee is and his types of games...

it's still not funny.
posted by Robot Johnny at 12:04 PM on April 23, 2003

It's not really supposed to be funny. It's supposed to be lame, as lame as American McGee's "edgy" version of Alice (oh how I wish I could link to the Old Man Murray review, which WAS quite funny -- wait here it is). Which is what's so ironic about the lawsuit -- the whole point of the strip is how dumb it would be to portray Strawberry Shortcake this way.
posted by straight at 12:20 PM on April 23, 2003

Well, it's entirely unrelated, but this seems like a good opportunity to link to my favourite PA strip ever.
posted by jeffj at 12:23 PM on April 23, 2003

Here's the rest of the OMM article.
posted by straight at 12:25 PM on April 23, 2003

would have been a bit smarter to call her strawberry crumbcake or something.
posted by th3ph17 at 1:07 PM on April 23, 2003

oh, I thought you meant penny arcade (and I was trying to figure out how she could be considered favored by gamegeeks, though describing her as a comic strip (comic stripper?) didn't faze me...)

sorry. carry on.
posted by mdn at 1:08 PM on April 23, 2003

Thanks straight. Reminding me again that its absolutely criminal that OMM is gone and so-so humor like PA lives on.

Oh, and Robot Johnny, as I said in my post, I didn't find it much funny either, was just pointing out that it's not possible to understand it if you don't know American McGee.
posted by malphigian at 1:24 PM on April 23, 2003

i've been a fan of PA for several years now, and while i still find the comic itself entertaining (go Div!), the real draw of the site is the news and commentary of Gabe and Tycho. There is an honesty in their writing that appeals to me. When they recommend something, it seems that it's not because they are getting paid to do it, but because they sincerely like it. When i'm looking for a review of something, this is important to me.
posted by quin at 1:27 PM on April 23, 2003

American Greetings has a responsibility to their trademark to defend it in court.

Where, ultimately, they'll lose- even if like Aqua it takes five years. This is a parody caricature of a trademark hosted on a site that makes 100% of its profit through voluntary donations. If this doesn't fall under Fair Use, then I have even less faith in what little I have left for copyright/trademark law in this country.
posted by XQUZYPHYR at 1:28 PM on April 23, 2003

OMM will be back some day. It will it will it will. Seriously, one of the guys from The Ultimate Bad Candy Website told me that Chet told him so. Of course Bad Candy has also been MIA for a year+, so maybe they weren't the most reliable source...
posted by PinkStainlessTail at 1:33 PM on April 23, 2003

"American Greetings has a responsibility to their trademark to defend it in court."

Since parody is allowed, there is no need to defend and you couldn't hold tis strip up as an example of them not defending their trademark. I joined the PA club as a show of support.

My Fav

You really do have to be a game geek to get much of this stuff.
posted by madmanz123 at 1:44 PM on April 23, 2003

XQUZYPHYR, nuff said. In addition to Fair Use, the free speech rights of parody have been upheld by the courts for quite a long time. It's almost a nonissue, except for the poor schmucks behind Penny Arcade and their banks accounts.
posted by geekhorde at 1:47 PM on April 23, 2003

You can lose trademarks through not enforcing them (like xerox, kleenex, etc). You can't lose copyright. Also, I don't think you get fair use rights with trademarks, just with copyright.
posted by fvw at 2:03 PM on April 23, 2003

Well i thought it was funny in a sick way but I can tell that in this thread, I'm in the minority. Most found it unfunny. However, parody doesn't necessarily have to be funny. So the guy's off the hook. No copyright issue worth spilling hot coffee over.

This reminds me though, whatever happened to Eliza Dushku playing lead in the film version of American McGee's Alice?
posted by ZachsMind at 2:33 PM on April 23, 2003

The cartoon made me feel a little funny. Like climbing the rope in gym class.
posted by Cyrano at 2:52 PM on April 23, 2003

I grinned at the comic, because I thought Alice took itself way too seriously, and wasn't nearly good enough to warrant the acclaim it got. Plus the idea that American McGee now has to scramble to find other childhood icons to make gothic and disconcerting.

But the question we should be discussing is not whether the cartoon is funny, but whether they should be threatened with legal action for it. Who did not look at that and think it was a parody?
posted by Hildago at 3:25 PM on April 23, 2003

As far as I'm concerned, everything is fair game for satire and parody, whether it's politicians, religious leaders, Mickey Rodent or Strawberry Shortarse.

Art should not be shackled by corporations and lawyers.
posted by Blue Stone at 3:54 PM on April 23, 2003

IANAL, but if I understand it correctly, parody is allowed as fair use only if the material appropriated is itself the subject of the parody.

So, for example, the song "Barbie Girl" was pretty clearly a parody of the Barbie doll. That would be allowed. But, the Penny Arcade strip with Strawberry Shortcake in it is not so much a parody of Strawberry Shortcake as it is a parody of American McGee's Alice. That's infringing.

Parodying someone else's copyrighted work = okay.
Using someone's copyrighted work to make a parody of something else = not okay.

So, if I understand the law correctly, Tycho and Gabe aren't likely to win if they go to court.
posted by CrunchyFrog at 4:50 PM on April 23, 2003 [1 favorite]

penny-arcade is a good one. It's not really thier first time they've played with other's mascots...I mean, how else do you think i'd have this kool-aid
posted by NGnerd at 6:20 PM on April 23, 2003

Why the hell did Penny Arcade remove the strip? I wish people would stop crumbling at the first letter from a corporate lawyer and stand up to this kind of outside-the-bounds bullying. This would be my reponse:

"Thank you for your letter. We are committed to working this dispute out amicably and welcome the opportunity to discuss our parody with you. The image you object to will remain up until we reach an agreement based on current copyright law.

"It is our current position that the image in question falls well within the bounds of perfectly legal "Fair Use." If you disagree, please explain why. If you do not offer an explanation, but continue to make legal threats, our lawyer advises us to tell you that we are fully prepared to defend our Constitutional right to free speech."

I bet they'd never hear from American Greetings' lawyers again. Oh, and looks like leftist corporations aren't immune either; the Village Voice is doing similar bullying.
posted by mediareport at 6:56 PM on April 23, 2003

Blue Stone: "Art should not be shackled by corporations and lawyers."

Oh but art IS shackled. Was it not an artist who first demanded we kill all the lawyers? I wanna say it was Shakespeare, in which case I am correct.

CrunchyFrog: "Using someone's copyrighted work to make a parody of something else = not okay."

What??! Wrongo! You can use two or more copyrighted works, merge them in some way, and that's still parody. I cite Troops as an example. Troops combines the "Cops" reality-based tv series with the movie "Star Wars" and the result is a delightfully hilarious parody of both. So it is VERY very okay.
posted by ZachsMind at 8:26 PM on April 23, 2003

American McGee is one of the single most displeasurable persons I've ever talked to, in my whole life. He was the most miserable, vapid and terminally boring person at Id. No wonder he left.. to move on.. and produce flops..

at least romero got killcreek.
posted by shadow45 at 9:19 PM on April 23, 2003

Penny Arcade, I feel your pain. Don't let it get you down, just keep drawing and put this in the past.
posted by Down10 at 1:19 AM on April 24, 2003

For all those who are saying "That's not funny," it's important to realize that the strip was a reaction to Todd McFarlane's new "Twisted Land of Oz" set of action figures. Here's Dorothy, in bondage gear and being taunted by Munchkins; the spear-impaled Cowardly Lion; the suffering-like-Prometheus Scarecrow; the wasn't-he-in-Tekken-or-was-that-Soul-Calibur Tin Woodsman; the Giger dandy Wizard; and the there-are-no-words Toto, with rider. (If you follow those links, it's the "Final Painted Sculpt Photo 03" that shows the entire figure; 01 and 02 are more fanciful shots.) Tycho acknowledges his inspiration here, so while it was an American McGee joke, it was also a comment on another facet of geekdom.

Hopefully this thread's not dead, because it'll be interesting to hear people's comments about the McFarlane figures.
posted by blueshammer at 8:02 AM on April 24, 2003

I think people are being too hopeful about the guarantee of legal protection for parody. Despite its traditional status as copyright get-out, corporates are increasingly using trademark law to threaten creators of parodies. See, for instance, Illegal Art and Intellectual Property: The Attack on Public Space in Cyberspace. blueshammer: I love the McFarlane figures (I'd guess they're unlikely to cause problems, as they're total reimaginings that don't resemble either those in the movie or Baum's original Roy Krenkel characters).
posted by raygirvan at 8:34 AM on April 24, 2003

Roy Krenkel
Oops; I mean Denslow.
posted by raygirvan at 11:39 AM on April 24, 2003