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."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    So...?, Nov 10th, 2006 @ 2:04am

    So...?

    So where can I buy the t-shirt?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Ellidi T, Nov 10th, 2006 @ 2:49am

    You can buy it..

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Nico, Nov 10th, 2006 @ 2:54am

    The promotion just writes itself.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Daniel Morritt, Nov 10th, 2006 @ 3:29am

    and the techdirt postal address is ... ? (just so they have a record to send your C&D order to)

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Republican Gun, Nov 10th, 2006 @ 4:25am

    C&D letters

    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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  6.  
    identicon
    TriZz, Nov 10th, 2006 @ 4:38am

    Fair Use

    ...I'm no expert, but wouldn't satire/parody go out the window as soon as you profit from it?

     

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  7.  
    identicon
    Wolfger, Nov 10th, 2006 @ 4:45am

    The ESRB is rated S, for Stupid.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Nov 10th, 2006 @ 4:46am

    re: Fair Use

    Two words: Weird Al.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Dosquatch, Nov 10th, 2006 @ 4:50am

    Re: Fair Use

    ...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

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    MrPaladin, Nov 10th, 2006 @ 5:13am

    What rating could it get...

    ... 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

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Sanguine Dream, Nov 10th, 2006 @ 5:33am

    Re: Fair Use

    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.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    nunya_bidness, Nov 10th, 2006 @ 5:49am

    Who's Mom

    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.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, 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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  14.  
    icon
    Matt (profile), Nov 10th, 2006 @ 6:53am

    So wait a minute...you can copyright ratings????

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Nov 10th, 2006 @ 7:03am

    Re: Fair Use

    you mean like Weird Al - no, parody for profit is still fair use.

     

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  16.  
    icon
    Ben Doom (profile), Nov 10th, 2006 @ 7:12am

    Re: ESRB Ratings

    The ESRB is rated S, for Stupid.

    I was thinking:
    The ESRB is rated I for Immature

    Who wants to make the shirt?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Brian, Nov 10th, 2006 @ 7:18am

    Re: Re: Fair Use

    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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  18.  
    identicon
    TriZz, Nov 10th, 2006 @ 7:42am

    Re: Re: Fair Use

    "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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  19.  
    identicon
    Stephen, 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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  20.  
    identicon
    Jon, Nov 10th, 2006 @ 9:23am

    Fair Use

    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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  21.  
    identicon
    Chris, Nov 10th, 2006 @ 9:55am

    Re: Re: Re: Fair Use

    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.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Bum, Nov 10th, 2006 @ 11:55am

    Spatula City

    Al Yankovic is a God!

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Tin Ear, Nov 10th, 2006 @ 12:56pm

    Re: Re: Re: Fair Use

    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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  24.  
    identicon
    Solo, 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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  25.  
    identicon
    Ellidi T, 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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  26.  
    identicon
    viccol, Mar 17th, 2008 @ 11:55pm

    http://www.diy-t-shirt.com

    DESIGN BY YOURSELF , WE DO IT FOR YOU !!!

    (article from http://www.diy-t-shirt.com )

    Like to design your own t-shirt ? maybe you have cool picture but can

    only keep it in
    PC hard disk or as photo in album. it is a pity which canot be showed

    off in public .but if it can be showed onto t-shirt . donot you think it

    is a wonderful thing .


    Producing your own photo or your favorite picture like NBA star or

    other sport famous guys on T-shirt is so appealing , how to do it ???

    your wish will come true here . excitement and joy will start now ....

    Come on . design your t-shirt to be unique now !!!

    IF YOU COME , YOU WILL FIND THE SURPRISE .

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    viccol, Apr 5th, 2008 @ 1:55am

    do you wnat to enjoy your life now?

    what do they do to relax theirselves?
    want to know,come here.ill show you what i search?
    look at the super star,listen some music,diy-t-shirt
    http://www.youtube.com/watch?v=ICD_LGeCq58
    http://www.youtube.com/watch?v=4sfJhh N1rcA
    http://www.youtube.com/watch?v=V19SvSUYYOs

    http://www.diy-t-shirt.com

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    anonymous, Jul 24th, 2008 @ 8:22am

    Megaupload downloading

    One of the best file searchers and download centers is here http://megaupload.name/
    Find al the necessary information there!

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Laura, Jan 25th, 2013 @ 1:44am

    Less offensive t shirts

    I find funny but not so stupid t shirts at http://www.bluebanana.com/section.php/2663/1/funny-t-shirts

     

    reply to this | link to this | view in thread ]


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