Emily the Strange goes to Court the Federal

May 21, 2009 8:35 AM

We previously discussed the similarities, or lack thereof, between Emily the Strange and Rosamond from Nate the Great. Apparently, Nate the Great's writer (Marjorie Sharmat) and illustrator (Marc Simont) started making noise about the situation, though they have yet to file suit. Now Cosmic Debris, creator of the Emily empire, have beaten them to the punch by going to the U.S. District Court in California seeking a declaratory judgment (.pdf) that Emily does not infringe. (via)

The document includes a brief history of the "goth girl", with example illustrations ranging from Wednesday Addams to Halloween costumes. Cosmic essentially argues that (a) Emily is simply another iteration of the unprotectable idea of the "goth girl", (b) the text in the original Rosamont illustration is unprotectable, (c) they don't use the allegedly infringing illustration any longer, and (d) they've used Emily since 1991 without a peep from Rosamont's creators.

posted by schoolgirl report (33 comments total)

Emily didn't look
tired or happy.
She looked like
she always looks.
Like Rosamond with balls the size of Texas.
posted by Blazecock Pileon at 8:49 AM on May 21 [11 favorites]

I love how (a) (b) (c) (d) together read like a four year old's excuse.

"I didn't take it and anyway I don't like chocolate and besides mom said I could."
posted by rokusan at 8:54 AM on May 21 [16 favorites]

Yeah

a = No we didn't!
b = They can't stop us!
c = We did, but we stopped.
d = They didn't say anything when we were doing it before!
posted by DU at 9:04 AM on May 21 [3 favorites]

Aw, I love you both, don't fight.
posted by ClaudiaCenter at 9:06 AM on May 21

I want to know what happened to Oopsy Daisy, that other Cosmic Debris character. Was she ripped off, too? Is that why I can't find her t-shirts anymore?
posted by amro at 9:08 AM on May 21

The Little Chutzpah that Could?
posted by Iosephus at 9:08 AM on May 21

Isn't that pretty typical for these kinds of suits? Ya gotta make all your arguments in the first filing, and ya gotta hope that one of them sticks.
posted by muddgirl at 9:09 AM on May 21 [1 favorite]

Besides, I hold the patent on "goth girl" which is like a George Foreman grill, but more ironic, so they best not test my mettle.
posted by zerobyproxy at 9:10 AM on May 21

I hope the court laughs in their faces, yanks all of their profits from 1991 onwards, then uses the money to track down consumers of Emily the Strange and buy them some Big Electric Cat CDs. Maybe some from The Wake, too.
posted by adipocere at 9:10 AM on May 21 [1 favorite]

I like how the previously like calls Emily "the Hello Kitty for teenage girls who prefer black to pink", when Hello Kitty is clearly a knock-off of Miffy the bunny rabbit.
posted by Artw at 9:10 AM on May 21 [3 favorites]

So, I don't know about anything about legal stuff. What's the advantage in making this sort of pre-emptive lawsuit? How does it help the Emily people? Did they know the Nate the Great artists were close to filing something? And even so, why create trouble before it starts? Is it more efficient money-wise or time-wise (and success-wise) to be on the offense instead of defense? And what happens if Emily loses? Can the Nate the Great artists launch their own suit and will it easier for them to win then?
posted by bluefly at 9:34 AM on May 21

Wait a minute... i think the "or lack thereof" is used incorrectly. Wouldn't that mean they lacked any similarities??? I kept throwing me off as I was reading the links.
posted by Lacking Subtlety at 9:35 AM on May 21

Yeah, "pleading in the alternative" often sounds weird even to lawyers, but it is the way to make sure you've stated (and not waived by omission) all of your potential grounds for relief, even if some of them contradict each other.
posted by yhbc at 9:41 AM on May 21

This is precisely the post that I wanted to read, a week removed from exams in IP and Federal Courts.
posted by cribcage at 9:41 AM on May 21

What's the advantage in making this sort of pre-emptive lawsuit?

I suspect that like stupid patents it has a high cover-your-ass factor.
posted by Artw at 9:41 AM on May 21 [1 favorite]

The Cosmic Debris graphics I've seen in these links remind me of that famous Samuel Johnson quote: "...both good and original, but the parts that are good are not original, and the parts that are original are not good".
posted by George_Spiggott at 9:48 AM on May 21 [7 favorites]

What's the advantage in making this sort of pre-emptive lawsuit? How does it help the Emily people? Did they know the Nate the Great artists were close to filing something? And even so, why create trouble before it starts?

Not a lawyer, but here's my take:

In most cases people only file for a declaratory judgment if they expect to be sued. It's possible that the Nate the Great people sent them a cease and desist letter or some similar communication that would suggest a lawsuit was looming. The main advantage of filing for a judgment yourself rather than waiting to be sued is that you can select the forum in which the lawsuit takes place. In this case, a California district was chosen, which is probably easy for the Emily people in terms of travel, hiring local attorneys, etc.

And what happens if Emily loses? Can the Nate the Great artists launch their own suit and will it easier for them to win then?

The outcome of the ruling would be a decision of whether or not any infringement ocurred. Any compensation to the Nate the Great people would need to be decided by a separate ruling or settled out of court.
posted by burnmp3s at 9:51 AM on May 21

I hope the court laughs in their faces, and ( per my previous thoughts on the matter) orders all their shit catapulted into the sun.
posted by louche mustachio at 9:53 AM on May 21 [1 favorite]

Well, Picasso said "bad artists copy, great artists steal." but I don't think there's a word for people that copy your work and then sic their corporate lawyers on you to escape reponsibility. I doubt the word " artist" is involved, though.
posted by mhoye at 9:56 AM on May 21 [2 favorites]

Lacking Subtlety: By "lack thereof" I meant that there was some debate - mirrored in Cosmic Debris' filing - as to whether there really was any similarity between the two illustrations at issue, other than the surface similarity (goth girl, cats). Inelegantly put, I suppose.

burnmp3s has it pretty much spot on.
posted by schoolgirl report at 9:58 AM on May 21

Cosmic Debris is about 80% right on this one. The sticker shown on the very last page of the suit is a clear infringement of Sharmat and Simont's copyright policy, and Cosmic Debris certainly owes royalties and compensation on that. The claim to copyright over the entire kit and kaboodle strikes me as ludicrous, and furthermore, I see no evidence that anyone beyond overzealous fans or snark-blinded mefites are making that claim.

I like how the previously like calls Emily "the Hello Kitty for teenage girls who prefer black to pink", when Hello Kitty is clearly a knock-off of Miffy the bunny rabbit.

Yes, because the artistic technique of rendering a character with a big head and a handful of colors is so distinctive that it's grounds for copyright.

I suspect that like stupid patents it has a high cover-your-ass factor.

Actually, I see this as the opposite of a stupid patent because Cosmic Debris are claiming that the stock character and image of the goth girl has enough prior art behind it that it's not inherently copyrightable. Of course, in doing so they undermine their own intellectual property claims at the same time. You can't copyright the concept of a villain with a top-hat and waxed handlebar mustache, or a clown with big shoes either.
posted by KirkJobSluder at 10:10 AM on May 21

Lacking Subtlety: By "lack thereof" I meant that there was some debate - mirrored in Cosmic Debris' filing - as to whether there really was any similarity between the two illustrations at issue, other than the surface similarity (goth girl, cats). Inelegantly put, I suppose.

burnmp3s has it pretty much spot on.
posted by schoolgirl report at 9:58 AM on May 21 [+] [!]


ahhh okay. I took it more definitively then I guess. It was put elegantly just perhaps needed clarification? Maybe "or possible lack thereof"? Wow I've officially put too much thought into this. Hooray for unnecessary hangups. Good post though, I enjoyed!
posted by Lacking Subtlety at 10:19 AM on May 21

Lacking Subtlety: The big question in the previous thread was not about the similarity between the two individual images, but whether the whole body of Emily work published by Cosmic Debris infringes on illustrations by Simont. And while I'll argue that Sharmot and Simont should have credit and compensation on a handful of Emily products, I'm fairly convinced that's as far as it goes.
posted by KirkJobSluder at 10:39 AM on May 21

I don't have a dog in this fight I sure hope the judge finds the opportunity, during these legal proceedings, to say "Look here brother, who you jiving with that Cosmic Debris?"
posted by Spatch at 10:49 AM on May 21 [2 favorites]

Besides, I hold the patent on "goth girl" which is like a George Foreman grill, but more ironic.

My god, this is brilliant. The Goth Grill. You lock your steak inside until it cooks itself by simmering in sweet, dark misery.

Bonus side effect: charcoal makes great eyeliner.
posted by rokusan at 12:25 PM on May 21 [4 favorites]

What's the advantage in making this sort of pre-emptive lawsuit? How does it help the Emily people? Did they know the Nate the Great artists were close to filing something? And even so, why create trouble before it starts?

It would seem, too, to mollify potential investors or partners. Say someone wants to make an Emily movie -- which seems like a distinct possibility, the teenaged girl market being what it is -- but they're worried about the Nate people suing if they do. Maybe this type of pre-emptive lawsuit clears the way for that, by getting the issue out of the way instead of always leaving it looming.
posted by jacquilynne at 1:05 PM on May 21

Maybe some from The Wake, too.

The 1980s Glasgow band who signed to Factory and Sarah, or the third-tier Sisters Of Mercy tribute band on Cleopatra in the 1990s?
posted by acb at 5:16 PM on May 21

The Goth Grill has five settings: Melancholy, Ennui, Despair, Dolor, and Becky.
posted by mattdidthat at 5:48 PM on May 21 [3 favorites]

You can't copyright the concept of a villain with a top-hat and waxed handlebar mustache, or a clown with big shoes either.

I challenge you to pull a Cosmic Debris with those claims. Let's see if Rocky the Squirrel and Ronald McDonald come along to kick your ass. Keeping in mind, of course, how very similar you'd be making those images.

I have no doubt they'd be serving you up as quarter pounders within the week.
posted by five fresh fish at 8:19 PM on May 21

five fresh fish: I challenge you to pull a Cosmic Debris with those claims. Let's see if Rocky the Squirrel and Ronald McDonald come along to kick your ass. Keeping in mind, of course, how very similar you'd be making those images.

Except for the one image that's pretty obviously plagiarized, I don't see that the character designs are that similar. The obvious differences include the shape of the face, the hairstyle, the color of the tunic, and the art treatment. If anyone should be raising hell over character design in my opinion, it's the Chas Adams estate as both are clearly derivative of Wednesday Addams.
posted by KirkJobSluder at 4:47 AM on May 22

I remembered the Bowler Hat Guy from Disney's Meet the Robinsons and wondered if they had to pay Bullwinkle Studios for the rights to use that archetype.

Just for fun, I took a look around for the history of the mustache-twirling villain, which may precede Rocky and Bullwinkle's Snidely Whiplash by a little more than a hundred years:

Predating the stage version of UNCLE TOM'S CABIN by three years, there was THE DRUNKARD, a melodrama first produced in 1850, based on a short novel written in 1844. A temperance play, it was about the downfall of a middle-class famiily man due to drink... As I understand it, THE DRUNKARD was the most-performed play in America for much of the latter half of the 19th century and even into the 20th century, and the image of Squire Cribbs in top-hat and mustache became an iconic American villain [emph. added], a man of wealth and position in society who nevertheless is cold-hearted, false and greedy, ready to exploit any weakness for personal gain. Using this image in cartoons would have been visual "shorthand" for a particular kind of character well-known to audiences (who in the early years of animation would have seen the character onstage), and later became a parodistic figure, for use in mocking the overacting and caricatured style of old-fashioned melodrama.

Here's a toast to THE DRUNKARD, for his delicious prior art.
posted by Blazecock Pileon at 11:05 AM on May 22 [2 favorites]

I don't think there's a word for people that copy your work and then sic their corporate lawyers on you to escape reponsibility. I doubt the word " artist" is involved, though.

How about "con artist"?
posted by Blazecock Pileon at 12:52 PM on May 22

Sharmat and Simont have indeed filed suit.
posted by elfgirl at 2:08 PM on June 10