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Get Your Fiber-Free Fruit Drink On
July 20, 2009 5:42 PM   Subscribe

David Rees's comic strip Get Your War On (and video), has been appropriated by Jamba Juice into an animated Flash video. Rees, of course, built Get Your War On using clip art, which makes matters a little trickier. Is Jamba Juice's ad a case of fair use? Or are there enough factors being used here for Rees to have a casus belli? Will we see more advertisements pilfering along these lines?
posted by ed (71 comments total) 4 users marked this as a favorite

 
This is easy. If you're an edgy artist known for skewering the establishment, it's fair use. If you're a corporation, it's outright theft.
posted by dhammond at 5:45 PM on July 20, 2009 [7 favorites]


Wouldn't this be the absolute definition of "you can't copyright an idea." The idea here is "let's use clip art as the drawings for a cartoon." IANAL, but I'm not seeing anything like a legal case here.
posted by yoink at 5:49 PM on July 20, 2009 [2 favorites]


What a daring move for Jamba Juice, advertising right on the bleeding edge of Internet humor. I can't wait to see their "All your juice are belong to us" Flash animation!
posted by eyeballkid at 5:50 PM on July 20, 2009 [1 favorite]


I want to be irritated by this, but the waves are so distracting....
posted by squasha at 5:59 PM on July 20, 2009


Fair use? Rees doesn't own those images. I'm assuming that Jamba Juice paid the same licensing fees that Rees did.
posted by delmoi at 6:00 PM on July 20, 2009 [1 favorite]


That imitation beach view screensaver would have been better without the little obsessive compulsive person on the beach repeating the same motions over and over and over and over.
posted by idiopath at 6:00 PM on July 20, 2009


Because it's clip art, it's really tricky to argue that they've ripped him off. Especially since the conversation itself isn't really in the style of GYWO.

This is about as much a rip-off as someone noticing LOLCATS are popular, and then captioning a cat with "May I have a Jamba Juice?" instead of "I can has Jamba?"
posted by explosion at 6:01 PM on July 20, 2009


I don't know whether it's fair use or not, but it most certainly sucks ass.
posted by blucevalo at 6:01 PM on July 20, 2009 [8 favorites]


yoink: a legal case may be challenging, there is a pretty big case for a mega-douchery-corporation-wants-to-be-savvy backlash in that Jamba Juice is using the exact same clip art...
posted by aydeejones at 6:02 PM on July 20, 2009


aydeejones: can't argue with that.
posted by yoink at 6:03 PM on July 20, 2009


More from Rees today, including a link to James Urbaniak's livejournal page, which IDs the ad agency, which apparently considers itself a do-gooder type.
posted by mediareport at 6:05 PM on July 20, 2009


Ehhh... he should sue them, since they did clearly base that campaign on his work.

But, I guess the only thing I ever gave Rees credit for was the hyper-cynical, ultra-dry dialog--the sort of shit that I could imagine a New York Republican saying. Jamba Juice completely and utterly failed to capture even the slightest bit of that feeling.

So it's, like, attempted plagiarism.
posted by Netzapper at 6:06 PM on July 20, 2009 [4 favorites]


The more you write on the internet about this manufactured "controversy", the more you do that ad agency's work for it. Get Your War On is not such an identifiable cultural signifier that quoting it would serve to address some population effectively. Masses of people on the internet getting the vapors, though? That everybody understands...especially news editors at cable and regional news outlets.
posted by felix betachat at 6:13 PM on July 20, 2009 [1 favorite]


I am going to support Rees by drinking wine instead of juice! Know justice, no juice!
posted by vespabelle at 6:14 PM on July 20, 2009 [2 favorites]


The idea of those two particular clip-art dudes having some sort of dialog is arguably protectable. If it were up to me, a lawyer would pro bono up some time for a cease and desist letter against the juice company.
posted by exogenous at 6:16 PM on July 20, 2009


I'm going to protest tomorrow by going into their location across from Bryant Park in midtown Manhattan. Once there, I'm going to strip naked and hit myself in the dick with a hammer until I die. I was going to do this anyway but now it won't be in vain.
posted by Damn That Television at 6:20 PM on July 20, 2009 [14 favorites]


They're not his images and the flash piece doesn't use "fuck" enough to be reminiscent of Get Your War On.

You should boycott Jamba Juice, however. Because it's super expensive and everything tastes like the Jolly Green Giant jizzed in it.
posted by Mayor Curley at 6:22 PM on July 20, 2009 [7 favorites]


for me, GYWO is so closely associated with the year or so after 9/11 that I can't help but feel queasy when I see the Jamba Juice version. It's just creepy. Maybe not for most of their target audience, but, for me, it's too soon. ;-)
posted by noway at 6:22 PM on July 20, 2009 [5 favorites]


But seriously this isn't about it being "actionable," it's about one of the only good things to be on the internet in the last decade (both in terms of humor and in terms of political relevance, not to mention in terms of 'actively donates money to landmine relief efforts'), being ripped-off by creatives to try to sell juice-like drink product.
posted by Damn That Television at 6:22 PM on July 20, 2009 [5 favorites]


I wonder why they think it's a picnic to purchase their overpriced smoothies. Their prices make Starbucks look like Dunkin' Donuts.
posted by blucevalo at 6:23 PM on July 20, 2009 [1 favorite]


It's fair use. It works both ways.
posted by the dief at 6:32 PM on July 20, 2009


Seriously. Any time I hear someone bought a trendy, overpriced Jamba Juice, it makes my opinion of them drop a little bit.
posted by darkstar at 6:35 PM on July 20, 2009


I'd like to boycott them but I've never bothered to buy an over-priced smoothie from these sad little shops. I've got this awesome gizmo at home called a BLENDER.
posted by 2sheets at 6:37 PM on July 20, 2009 [3 favorites]


I'm more than happy to continue not buying a juice I don't like to support a comic I like but don't read. That is, until my non-activism starts eating into my naptime.
posted by DU at 6:44 PM on July 20, 2009 [6 favorites]


Uh, this looks like he'd have a trademark claim, if he'd trademarked GYWO. It presents a reasonable chance of confusing people to think that Rees has endorsed Jamba Juice and can detrimentally affect his ability to engage in future endorsements.

That's different than a copyright claim. See also: Why Disney will still sue your ass to the motherfucking stone age even after Mickey is officially public domain.
posted by klangklangston at 6:49 PM on July 20, 2009 [2 favorites]


Also, if he doesn't have a trademark on GYWO (if he does, he's basically obligated to sue), then the answer is to have everyone in his strip talking about how they just stabbed a motherfucker for drinking Jamba in front of them while kids are being genocided what what.
posted by klangklangston at 6:51 PM on July 20, 2009 [3 favorites]


Yeah, it was obviously ripped off/trying to imitate GYWO. Which is just wrong. I'm not a lawyer, so I can't speak to actionable, but it is bad juju.
posted by dejah420 at 7:00 PM on July 20, 2009 [1 favorite]


I really dig Get Your War On, and I've paid the man good money for his books. I also think My New Fighting Technique is Unstoppable is an awesome (and funny) critique of how martial arts exist today.

I think Jamba Juice sucks butt.

That's all.
posted by P.o.B. at 7:05 PM on July 20, 2009


It's like that royalty free knockoff song that's almost but not quite the hit song you think it is.
posted by bottlebrushtree at 7:05 PM on July 20, 2009


for me, GYWO is so closely associated with the year or so after 9/11 that I can't help but feel queasy....

Yeah. That. Associating your product with 9/11 and the GWOT is very WTF.
posted by popechunk at 7:09 PM on July 20, 2009


Rees is obviously tongue-in-cheeking a lot of his 'rage' and 'indignation.' But in there somewhere I do hear (righteous) indignation and frustration having a ...fucking juice company co-opting the brilliant satire he created as a way to handle 9/11 and what he saw in the news and in politics.

I vividly remember reading his strip back then; it was both hilarious and absolutely heartbreaking at times, those little clipart characters despairing the war on terror and other insanities.

Feels like Jamba is cheapening GYWO. Which is unacceptable.

(And I love his blogpost signoffs. "JUICE SUCKS, DRINK WINE," "Know hope." He's still got it.)
posted by Glee at 7:10 PM on July 20, 2009


Somewhat echoing noway, I'd just like to say that GYWO was significant to me in dealing with the anger, yes, but more so, the sorrow associated with 9/11. I don't read it regularly now, but it helped me at that time to focus and be able to get to work. It will always be to me "of that time, of that place."
posted by Morrigan at 7:21 PM on July 20, 2009 [1 favorite]


I, for one, fully support Jamba Juice in ripping off whatever online comic they so choose. Without their lazy ad agency, I never would have seen those GYWO animations. Thanks, Neighbor!
posted by tylermoody at 7:39 PM on July 20, 2009


Using clipart, in itself, isn't at issue here. that they chose to use only those specific clipart images which have become iconically associated with GYWO, makes it more clearly theft than inspiration.
posted by Billegible at 7:41 PM on July 20, 2009


What percentage of Jamba Juice customers actually have ever read GYWO?

Also, Jamba Juice drinks are stomach gas inducing.
posted by Burhanistan at 8:01 PM on July 20, 2009


Dang, I'd forgotten how much I liked Rees's Friday Face-Offs. The first week is still my fave - every cover of "Umbrella" there is totally worth the time, culminating in some kids doing a killer casual tossed-off punk version. It's cool he's still doing them; 3rd place in the "Chopped N Skrewed" competition is hilarious: "This is like two inches away from being a Gregorian chant. "
posted by mediareport at 8:15 PM on July 20, 2009


mmmm healthy
posted by lalochezia at 8:15 PM on July 20, 2009


Rees created an original work out of publicly available artwork. The resulting work is copyrightable as a whole, while the work contained in it is not. Jamba juice used identical artwork in an extremely similar manner, bordering on copyright infringement. The trick is for Rees to show that Jamba at least knew of his work and intended to duplicate it. If that is the case, then Jamba has violated Rees' copyright.
posted by Maztec at 8:36 PM on July 20, 2009


I love Jamba Juice. I don't care who they steal their advertising from.
posted by djduckie at 8:48 PM on July 20, 2009


If you buy a Jamba Juice, the terrorists have won. The Bin Laden family indirectly own the franchise through the Carlyle Group.
posted by Blazecock Pileon at 8:52 PM on July 20, 2009


Also, Ann Althouse had been drinking Jamba Juice all day when she killed that hobo.
posted by jtron at 9:13 PM on July 20, 2009


Actually, I'm surprised the clip art people never went after David Rees in the first place, unless they have really loose usage language in their license. The strip went way beyond normal clip art usage rights, and for that it was brilliant. Who would think to write a "moral rights" clause into a clip art license?

Rees should shut his trap and be happy his pop culture footprint has been cemented by a pale imitator.
posted by queensissy at 9:36 PM on July 20, 2009


Maybe it's a homage?
posted by Artw at 9:39 PM on July 20, 2009


I thought it was settled Kenny Rogers killed that hobo. But I guess he mixed his hooch with Jamba juice.
posted by Glee at 9:39 PM on July 20, 2009


You gotta know when to roll 'em...
posted by darkstar at 9:48 PM on July 20, 2009


Jamba Juice passes through a twisted necklace of anuses on its way to your cup. Juice sucks; drink wine.
posted by gum at 10:05 PM on July 20, 2009 [1 favorite]


Rees created an original work out of publicly available artwork. The resulting work is copyrightable as a whole, while the work contained in it is not. Jamba juice used identical artwork in an extremely similar manner, bordering on copyright infringement. The trick is for Rees to show that Jamba at least knew of his work and intended to duplicate it. If that is the case, then Jamba has violated Rees' copyright.

I agree, but at the same time can't see a copyright argument here- they're not actually stealing any of Rees' work directly, and it's a fair assumption they took the clip art themselves and whipped it up from scratch. What they are doing, however, is creating a deceptive suggestion that Rees endorsed Jamba Juice, which legally could be an argument for false advertising and financial damage to his reputation. You can be sued for impersonating someone in an advertisement, which is why you always here that quiet, fast "celebrity voices are impersonated" disclaimer at the end. There is definitely precedent for artistic impersonation.

Rees' strongest legal demand here could (and should) be that the site place a prominent disclaimer saying that Jamba Juice is in no way affiliated with Get Your War On. And the harshest penalty this ad firm can face is already happening: their client, likely oblivious to GYWO in the first place, just found out they hired some hacks to pitch their shitty juice.
posted by XQUZYPHYR at 10:20 PM on July 20, 2009 [1 favorite]


The clipart is royalty-free illustrations created by a Tom Tierney, published by Dover Publications.

Rees found at least some of the clipart in the book Ready-to-Use Office and Business Illustrations (some of the characters he uses are on the cover).

Rees talked about this at a speech and Q&A at University of Connecticut, March 27, 2003 (mp3). He mentioned he's a big fan of Tierney's work (loves the "blandness") and that the license was something like free to use commercially when using no more than ten illustrations from the same collection.

The Jamba juice ad creators must've learned the same thing and bought the book(s) for themselves.
posted by Glee at 11:24 PM on July 20, 2009


Shit, that should've been "The clipart is copyright-free illustrations ..."
posted by Glee at 11:28 PM on July 20, 2009


which legally could be an argument for false advertising and financial damage

I thought you said "facial damage" there for a second and I was like "hell yeah!"

Then I reread what you actually wrote.
posted by P.o.B. at 11:39 PM on July 20, 2009 [1 favorite]


No need to correct yourself, Glee, and thank you for bringing up Tierney. Again, the license you get for clip art is pretty broad, but the ones I've seen prohibited the use of the clip art as the majority of content used for additional commerce or some such. That's where the difference w/Tom Tomorrow lies (lays?). When you use clip art as your sole visual source, things get sketchy even if the words are yours. I am still baffled by Jon Hendricks' non-solicited lyric takeover of many instrumental standards, and thus a 50% ownership of the copyright of any vocal versions of the piece...
posted by queensissy at 11:51 PM on July 20, 2009


I love me some Jamrag Juice. Every bottle contains the menstrual cycle of no less than 20 Chinese peasants. And there's no additives or preservatives either. Each bottle contains 100% pure jamrag extract.

How many Chinese peasants does this Rees guy keep in full employment for two days every month? None, I'm guessing.
posted by PeterMcDermott at 12:23 AM on July 21, 2009


That's just nit-picking.
posted by Blazecock Pileon at 12:35 AM on July 21, 2009


"I own that image!"
"That was my idea first!"
"Those sounds belong to me!"
"Stamped it, double act it, no erasies"
....
"MOM!"
posted by srboisvert at 12:55 AM on July 21, 2009 [1 favorite]


Shit, that should've been "The clipart is copyright-free illustrations ..."

Royalty free, not copyright free. You can only use ten illustrations, for example, and I would assume you have to buy the book too.
posted by delmoi at 12:59 AM on July 21, 2009


Royalty free, not copyright free.

Yeah I was convinced that was the case too (in the linked speech above Rees says "public domain" but that can't be right), but I spotted the text on the book cover (they had a slightly larger, legible image). It says "Copyright-Free Designs-..." no wait, those are bullets!

"Copyright•Free Designs•Printed One Side•Hundreds Of Uses"

You're right, my correction wasn't.
posted by Glee at 1:14 AM on July 21, 2009


Reese was one of those voices that helped define a moment in New York's (and America's) history. However many people are or are not even aware of who he is, his tone and style spread from his strip into the national discourse.

Jamba Juice? (as it currently exists)? Ass-swill that leaked out of a corporate board meeting circle-jerk.
posted by From Bklyn at 1:18 AM on July 21, 2009


It's probably legal. This isn't the first time, of course, that a brand has been accused of stealing ideas. It's notoriously hard to win these cases in court.

The best response - bearing in mind that Jamba Juice positions itself as original, cutting edge and premium - would be to run a guerilla campaign online that targeted its customer base and made them aware that the brand's advertising - and by extension the brand - is a cheap rip off.

No brand wants that publicity, especially when the people most likely to respond are the hipsters who buy into the Jamba Juice brand credentials. The process would also bring publicity and a fresh audience for the artist.

IMHO it shouldn't be too hard to turn a negative into a positive.
posted by MuffinMan at 4:11 AM on July 21, 2009


re my last. See: Berocca. And the original.
posted by MuffinMan at 4:16 AM on July 21, 2009


Wow, back when I discovered GYWO I spent hours trying to find the original clip art, I too wanted to do some political cartoonism, now got it at last! thks mefii!
posted by samelborp at 5:17 AM on July 21, 2009


Reminds me of the pseudo Don Hertzfeldt pop tart ads.
posted by PhoBWanKenobi at 7:05 AM on July 21, 2009


Jamba Juice is ripping off Lichtenstein! Those bastards!
posted by ChurchHatesTucker at 8:17 AM on July 21, 2009 [1 favorite]


"Uh, this looks like he'd have a trademark claim, if he'd trademarked GYWO."

This is not a trademark issue. It's a copyright issue, if anything. Copyright does not have to be registered to be valid.
posted by krinklyfig at 8:29 AM on July 21, 2009


>Copyright does not have to be registered to be valid.

Ah, but it does have to be registered to pursue a claim in court. (Just one part of the false egalitarianism of the new copyright order. Everyone thinks they're sitting on potential piles of gold, but only big biz can afford to position themselves correctly.)
posted by ChurchHatesTucker at 11:09 AM on July 21, 2009


With any luck, Rees will end up making more money off of this than Jamba Juice, and the latter will be left to their usual market.
posted by Halloween Jack at 12:07 PM on July 21, 2009


"This is not a trademark issue. It's a copyright issue, if anything. Copyright does not have to be registered to be valid."

You're flat wrong. Copyright would not apply here, because they are not reproducing the fixed forms that Rees created (the comics), nor are they making a derivative work. Like I said, trademark would be an issue if Rees has trademarked GYWO, because this can be seen as damaging the brand of GYWO due to the likelyhood of confusion regarding the trade source of the cartoons. You don't seem to have any idea what you're talking about, nor how intellectual property functions in court.
posted by klangklangston at 12:27 PM on July 21, 2009


>You don't seem to have any idea what you're talking about, nor how intellectual property functions in court.


Show me somebody who does. Reliably.
posted by ChurchHatesTucker at 12:32 PM on July 21, 2009


Ah, but it does have to be registered to pursue a claim in court.

This is hardly an onerous requirement. Registration may be made at any time within the life of the copyright. If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright.
posted by 0xFCAF at 12:50 PM on July 21, 2009


"You don't seem to have any idea what you're talking about, nor how intellectual property functions in court."

Are you an attorney? No?

What's with the hostility, jackass?
posted by krinklyfig at 1:11 PM on July 21, 2009


"Are you an attorney? No?

What's with the hostility, jackass?
"

Because, like I said, you're flatly wrong and asserting bullshit in the absence of fact, something that copyright has plenty of without adding yours.

You don't have to be an attorney to read Copyright Basics. The copyrightable aspect of GYWO is the text—the copyright office is clear about how neither the arrangement of typographic elements, "familiar symbols or designs," or lists of procedures and ingredients i.e. recipes, are not copyrightable. The artist retains copyright, though has licensed it for clip art use, so Rees cannot make a claim to that. The ideas, tone or principles and concepts are not copyrightable.

Instead, Rees has a claim—if he has registered trademark, and I don't have access to databases to see if he did, but as I don't see a mention of it on his site—it would be trademark, under the argument that he is providing a service distinguished by the use of these characters in an ongoing work, one that is nominally distinguishable from other cartoonists.

The tangent of registration of copyright is illuminating here—in order to get statutory and punitive damages, the creator must register copyright either prior to the infringement or within three months of publication. In that case, each comic strip consists of a separate work (just as each anthology would act as an also separate work, the same way that you can copyright the design of an edition of public domain text). So what specific work is Jamba Juice infringing upon? None—they use none of Rees' work. Instead, and I reiterate, their intention is to cause confusion regarding an association between Rees and their company, and that arguably implies endorsement. Were Rees' ideas copyrightable as a whole, rather than in fixed form, he'd be able to register them as such, however they are not and he cannot. QED.
posted by klangklangston at 1:41 PM on July 21, 2009


"Because, like I said, you're flatly wrong and asserting bullshit in the absence of fact, something that copyright has plenty of without adding yours. "

We can have a civilized conversation about this or any topic without you taking this shitty attitude, or I can ignore you. It's not really that important to me who is right here, so I think I'll just move on.
posted by krinklyfig at 2:50 PM on July 21, 2009


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