This Post Rated E For Everyone (Except The Entertainment Software Association)
from the trademarks-and-morons-in-a-hurry dept
Looks like it's time to break out my favorite "test" in a trademark dispute: the moron in a hurry test. Last month, video gamer blog Kotaku was one of a few blogs that linked to a humorous t-shirt that was for sale parodying the ESRB video game rating system. The t-shirt read: "Your Mom's Rated E for Everyone." And what happens next? The Entertainment Software Association (the folks behind the ESRB ratings) send out a cease and desist letter to Kotaku, claiming that there's a "substantial likelihood that the ESRB certification marks will face tarnishment and dilution." Now, there are a few problems here. First, Kotaku had nothing to do with the actual shirt (though, the ESA folks apparently couldn't figure that out). They were just writing about it, which is clearly perfectly legal no matter how you look at it. Kotaku home base (better known as Gawker Media) pointed out to the ESA that they were probably mistaken and that since it's news/editorial content there's nothing to bother with here. But, apparently the lawyers at the ESA don't believe in that sort of thing, and repeated their demand that Kotaku's post be taken down. Of course, even if Kotaku were selling the t-shirt, they'd have a pretty clear case for it being legal. On the copyright side, it's a parody, which is an acceptable defense for fair use. On the trademark side, we trot out the moron in a hurry, who is unlikely to ever think that a t-shirt reading "Your Mom's Rated E for Everyone" is actually endorsed by the ESRB. If anything, the ESRB just spiked the demand for this t-shirt. However, what would be really fun, is if someone now creates a video game named "Your Mom" and tries to get an ESRB rating of "E for Everyone."
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So...? by So...? on Nov 10th, 2006 @ 2:04am
So where can I buy the t-shirt?
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You can buy it.. by Ellidi T on Nov 10th, 2006 @ 2:49am
..at http://www.tshirthell.com
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by Nico on Nov 10th, 2006 @ 2:54am
The promotion just writes itself.
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by Daniel Morritt on Nov 10th, 2006 @ 3:29am
and the techdirt postal address is ... ? (just so they have a record to send your C&D order to)
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C&D letters by Republican Gun on Nov 10th, 2006 @ 4:25am
C&D Letters just scare people who do not have legal representation. They are not worth the stamp that sent them. Obviously T Shirt Hell has a lot more legal representation than a dude with a blog.
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Fair Use by TriZz on Nov 10th, 2006 @ 4:38am
...I'm no expert, but wouldn't satire/parody go out the window as soon as you profit from it?
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by Wolfger on Nov 10th, 2006 @ 4:45am
The ESRB is rated S, for Stupid.
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re: Fair Use by Anonymous Coward on Nov 10th, 2006 @ 4:46am
Two words: Weird Al.
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Re: Fair Use by Dosquatch on Nov 10th, 2006 @ 4:50am
...I'm no expert, but wouldn't satire/parody go out the window as soon as you profit from it?
What, the actors on SNL don't get paid? How rude! /sarcasm
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What rating could it get... by MrPaladin on Nov 10th, 2006 @ 5:13am
... that would not be funny...
Your mom, Rated T for teen?
Your Mom, Rated M for mature?
I mean rating someones mom on any level just comes out funny
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Re: Fair Use by Sanguine Dream on Nov 10th, 2006 @ 5:33am
I don't think it would. If that were the case then there would no skit shows (Mad TV or SNL) and Weird Al's music career would have ended in the 80's.
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Who's Mom by nunya_bidness on Nov 10th, 2006 @ 5:49am
I think in order to properly present a C&D, the ESA would have to prove that the t-shirt was actually in reference to a particular mom.
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by Anonymous Coward on Nov 10th, 2006 @ 6:19am
However, what would be really fun, is if someone now creates a video game named "Your Mom" and tries to get an ESRB rating of "E for Everyone."
Lol! That was great.
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by Matt on Nov 10th, 2006 @ 6:53am
So wait a minute...you can copyright ratings????
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Re: Fair Use by Anonymous Coward on Nov 10th, 2006 @ 7:03am
you mean like Weird Al - no, parody for profit is still fair use.
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Re: ESRB Ratings by Ben Doom on Nov 10th, 2006 @ 7:12am
The ESRB is rated S, for Stupid.
I was thinking:
The ESRB is rated I for Immature
Who wants to make the shirt?
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Re: Re: Fair Use by Brian on Nov 10th, 2006 @ 7:18am
Actually I believe Weird Al does get approval from all the artists that he parodies before hand. He didn't at the very beginning, but ran into some legal trouble and has been getter permission ever since.
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Re: Re: Fair Use by TriZz on Nov 10th, 2006 @ 7:42am
"I don't think it would. If that were the case then there would no skit shows (Mad TV or SNL) and Weird Al's music career would have ended in the 80's."
Like Brian said, I also believe Weird Al gets permission.
And the shirt uses the ESRB logo in it's entirety, including the catchphrase of "rated E for everyone". Movies like the Scary Movie series - and the skit shows don't use the parody in it's entirety.
I should make myself clear, I don't think it's right that they are suing - but I'm not sure if this falls under the umbrella of "fair use."
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by Stephen on Nov 10th, 2006 @ 8:41am
Weird Al gets permission, because he's a nice guy, but he doesn't need permission. I think this came out when he did Amish Paradise.
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Fair Use by Jon on Nov 10th, 2006 @ 9:23am
weird Al gets permission in some cases; when he can't, he stays away just enough that he can't be charged--and doesn't hold back on anything else. This was pointed out on one of his album covers, several years ago. It might have changed now. [It was also stated that most artists think a Weird Al parody of their works is a compliment.]
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Re: Re: Re: Fair Use by Chris on Nov 10th, 2006 @ 9:55am
Weird Al gets permission, but the key bit is he doesn't HAVE to. I believe for example, the song "You're Pitiful" he had full permission from James Blunt, but Blunt's record company said no. Weird Al said, "well, it doesn't actually matter since parody is fully covered under Fair Use, but I don't want to disenfranchise anyone." or something along those lines.
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Spatula City by Anonymous Bum on Nov 10th, 2006 @ 11:55am
Al Yankovic is a God!
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Re: Re: Re: Fair Use by Tin Ear on Nov 10th, 2006 @ 12:56pm
TRUE! As a matter of fact, Al got in trouble for the song 'Amish Paradise' due to the fact that Coolio's producers indicated Al could produce the song and then Coolio himself made a statement that he never gave express permission. I am unaware what kind of settlement was reached in the case, but Al did apologize publicly. I believe that royalties/fees of some sort are being paid to Coolio.
In any case, it's asinine for the ESRB to go after a guy who mentions a product in a blog. Even if it were completely degrading to the rating system, mentioning the parody is still covered by freedom of speech.
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by Solo on Nov 10th, 2006 @ 8:59pm
TShirtHell.com is the best source for offensive tshirts and funny too. This is really good publicity.
The moron in a hurry applies to the lawyers who c&d the blog pointing to the original web site. Cluesless about the internet? A little too much red wine with the pork chops for lunch? In any case, double checking by a peer with more than one brain cell should be a good policy.
Finally, the ESRB should be rated R for retard (and that's offensive to retards) and their lawyers rated S for STFU.
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by Ellidi T on Nov 13th, 2006 @ 10:02am
Weird-Al has to pay royalties to Coolio then?
Then does Coolio pay royalties to Stevie Wonder?
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