Penny Arcade - Comic - Good Etama

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Penny Arcade - Comic - Good Etama

Videogaming-related online strip by Mike Krahulik and Jerry Holkins. Includes news and commentary.

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MarcinMN

Is this going to be another Strawberry Shortcake situation?

YoungFrey

MarcinMN wrote: »

Is this going to be another Strawberry Shortcake situation?

I mean, it all comes down to if somebody decides to sue and if they decide to fight it. But if I recall correctly, the reason why the Strawberry Shortcake comics wasn't ok was "because they were using Strawberry Shortcake to parody another IP (American McGee's Alice In Wonderland)". If they were just parodying Strawberry Shortcake it would have been ok (in theory). But I'm sure the lawyers could come up with a reason this isn't parody either.

dennis

YoungFrey wrote: »

MarcinMN wrote: »

Is this going to be another Strawberry Shortcake situation?

I mean, it all comes down to if somebody decides to sue and if they decide to fight it. But if I recall correctly, the reason why the Strawberry Shortcake comics wasn't ok was "because they were using Strawberry Shortcake to parody another IP (American McGee's Alice In Wonderland)". If they were just parodying Strawberry Shortcake it would have been ok (in theory). But I'm sure the lawyers could come up with a reason this isn't parody either.

Basically the reason Weird Al always gets permissions to write his songs, which typically aren't exactly a "parody" of the original (e.g. "Party in the CIA").

Zilla360

I'm surprised it took Mike this long to discover Gudetama.

Sterica

I doubt the Strawberry Shortcake comic ran afoul of anything, but PA in the mid 2000s was a lot smaller than now, and it just wasn’t worth the costs of going to court. Weird Al asking permission is more of a professional courtesy which can pay dividends such as artists letting him use original sets for music videos or getting rights to music for his polka covers (which are decidedly NOT fair use).

dennis

Unless one of us turns out to be a copyright lawyer, we're all just armchairing it. But all the things I've read are very clear that when parody does hold up in court, it has to be saying something about the thing it's parodying:

https://www.tcamtoday.com/2023/laugh-it-off-a-guide-to-parody-under-us-trademark-law/

Commentary or criticism: If the parody is used to criticize or comment on the original brand or its owner, it may be protected speech under the First Amendment. Notably, parodies used in connection with commercial products or services for financial gain are given less latitude than those used in connection with purely expressive works.

https://corporate.findlaw.com/intellectual-property/parody-fair-use-or-copyright-infringement.html

The Supreme Court accepted 2 Live Crew's song as a parody because the rap song mimicked the original to achieve its message and because it "reasonably could be perceived as commenting on the original [Oh, Pretty Woman] or criticizing it, to some degree."

https://corporate.findlaw.com/intellectual-property/parody-use-of-trademarks.html

Generally, good parody should lead to the antithesis of confusion, as its intent is to mock the original mark in its similarity to the mark

https://copyrightalliance.org/faqs/parody-considered-fair-use-satire-isnt/

While both parody and satire use humor as a tool to effectuate a message, again, the purpose of a parody is to comment on or criticize the work that is the subject of the parody. By definition, a parody is a comedic commentary about a work, that requires an imitation of the work. Satire, on the other hand, even when it uses a creative work as the vehicle for the message, offers commentary and criticism about the world, not that specific creative work. Therefore, parodies use copyrighted works for purposes that fair use was designed to protect.

https://casetext.com/case/northland-family-planning-clinic-inc-v-ctr-for-bioethical-reform

A parody employs elements of a prior work to create a new work that, at least in part, comments on the original.

Sorry, don't mean to bury you in references, but it's something I've looked up before.

It's possible PA could have won a court battle. From everything I've read, it's never 100% certain how things will go. That 2 Live Crew case took three trials with different outcomes before SCOTUS made the final ruling. But in general, the cases I've seen decided are pretty clear on what constitutes parody, even if they don't always fully apply the logic to a particular case.

Today's PA strip would definitely be parody, as it's commenting on the sexiness of Gudetama with a drawing of Gudetama.

I also feel compelled to mention that some of Weird Al's songs are clearly parodies (commenting on the original), like Smells Like Nirvana. There's just a whole lot more that are not, or are only if you squint super hard.

agoaj

https://twitter.com/cliffisboring/status/1687513766932676608

@cliffisboring
I posed all the Gudetama's in the game and on every butt shot I increased the size of his rump 20% specifically to awaken dormant feelings in people.

MarcinMN

To be honest, I mostly made the comment because I didn't fully remember the reason for the Strawberry Shortcake drama. I thought the problem was that the company that had the rights didn't like the "racy" depiction of the character, but apparently it was more complicated than that.

Hevach

dennis wrote: »

Unless one of us turns out to be a copyright lawyer, we're all just armchairing it. But all the things I've read are very clear that when parody does hold up in court, it has to be saying something about the thing it's parodying:

The 2 Live Crew case defined the 4 factor test that courts use, but because it's kind of a mess to navigate (it took multiple lawsuits in multiple jurisdictions and several trips to the supreme court to resolve - the case ended up generating a *ton* of Fair Use precedent) the various Dr. Seuss cases are probably a better set of examples. They've had a dozen or so, with an even mix of wins and losses, but their "big three" are Pengin Books, ComicMix, and Lombardo.

Seuss vs. Penguin Books: Penguin Books published a book that depicted The Cat in the Hat as OJ Simpson in his criminal trial on it's cover. It borrowed only a single page of art and a character name for the title and not the work, which didn't pursue the metaphor at all in the book. It was found to be infringing because the only commentary was on the Simpson trial and not Dr. Seuss, and that the infringing material was only used for attention and not content.

Seuss vs. ComicMix: ComicMix published a Star Trek parody using Dr. Seuss characters and style. ComicMix was also sued by CBS for this, and the two cases together paint the picture well. The work was found not to infringe on CBS's rights as it made extensive commentary on Star Trek specifically and the genre in general, but it was found to be infringing on Dr. Seuss because it did not comment upon the works it borrowed characters, art, and style from.

Seuss vs. Lombardo: This one Seuss lost. This work involved characters and setting from How the Grinch Stole Christmas, as the residents of Whoville faced serious real world problems with the same unsettling cheerfulness as stolen Christmas decorations. The work was found to comment heavily on the borrowed material and thus not infringing.


The Strawberry Shortcake comic would be closest to ComicMix (infringing), while this one would be closest to Lombardo (not infringing).