Once Again, Supreme Court Suggests That The 1st Amendment Must Stand Aside For ‘Intellectual Property’

Free Speech

from the drink-up dept

A few weeks back, we wrote about the Supreme Court’s decision in the case between the Andy Warhol Foundation and Lynn Goldsmith, regarding the copyright on certain images that Warhol painted based on a Goldsmith photograph, and exploring under what conditions it was protected by fair use. We felt that the Court completely ignored the 1st Amendment interests at play, but there were many people (including close friends) who have argued that the ruling was “narrow” and not so problematic. We shall see.

Last week, the Supreme Court also ruled in another case that we’ve written about a few times, regarding whiskey maker Jack Daniels and dog chew toy maker VIP products, which made a chew toy called “Bad Spaniels” made to parody the well known Jack Daniels’ bottle.

There were lots of issues regarding trademark law at play in the case, and it has bounced around the courts for years, but the key question before the Supreme Court here regarded what test should be used in cases of parody. Normally (though not always), as regular Techdirt readers will know, trademark law goes by the “likelihood of confusion” question for determining whether or not a use is infringing. Since the crux of trademark law is about recognizing the origin of the product, the question of whether or not there’s any confusion is often the most important.

That said, a case from a few decades ago, Rogers v. Grimaldi, established a test for trademark when there were 1st Amendment free expression issues at play, designed to make sure it’s protecting speech. In this case, the 9th Circuit used the Rogers test to dump the case, saying that there was no trademark infringement. Jack Daniels challenged the use of the Rogers test, leading many to fear a ruling that would cut back on free speech protections, especially given how often bogus trademark claims are used to stifle speech. This is why there were so many amicus briefs in the case from free speech groups.

In many ways, this ruling had some similarities to the Warhol case, in that it feels narrowly focused, and many people we agree with breathed a sigh of relief, saying that the ruling isn’t that bad, as it leaves the Rogers test mostly intact. And, as with the Warhol case, I agree that the ruling absolutely could have been a lot worse.

But, there were still some elements that I find worrisome, in the same way that there were elements of the Warhol case that were worrisome. And, those elements were… actually kind of similar. In both cases, the Supreme Court justices more or less suggest that the 1st Amendment sometimes needs to stand aside in “intellectual property” cases.

Specifically, in this case, the Supreme Court said that the Bad Spaniels case could be decided based on traditional trademark terms regarding likelihood of confusion, rather than even getting to the Rogers test and questions related to free expression and the 1st Amendment:

The Ninth Circuit was mistaken to believe that the First Amendment demanded such a result. The court thought that trademark law would otherwise “fail[] to account for the full weight of the public’s interest in free expression.” 953 F. 3d, at 1174. But as the Mattel (i.e., Barbie) court noted, when a challenged trademark use functions as “source-identifying,” trademark rights “play well with the First Amendment”: “Whatever first amendment rights you may have in calling the brew you make in your bathtub ‘Pepsi’” are “outweighed by the buyer’s interest in not being fooled into buying it.” 296 F. 3d, at 900. Or in less colorful terms: “[T]o the extent a trademark is confusing” as to a product’s source “the law can protect consumers and trademark owners.” Tam, 582 U. S., at 252 (Kennedy, J., concurring in part and concurring in judgment); see Friedman v. Rogers, 440 U. S. 1, 15 (1979) (rejecting a First Amendment challenge to a law restricting trade names because of the “substantial” interest in “protecting the public from [their] deceptive and misleading use”). Or yet again, in an especially clear rendering: “[T]he trademark law generally prevails over the First Amendment” when “another’s trademark (or a confusingly similar mark) is used without permission” as a means of “source identification.” Yankee Publishing Inc. v. News Am. Publishing Inc., 809 F. Supp. 267, 276 (SDNY 1992) (Leval, J.) (emphasis deleted). So for those uses, the First Amendment does not demand a threshold inquiry like the Rogers test. When a mark is used as a mark (except, potentially, in rare situations), the likelihood-of-confusion inquiry does enough work to account for the interest in free expression.

In this case, the Supreme Court basically sent the case back to the 9th Circuit to review for “likelihood of confusion,” which VIP Products is likely to win anyway.

But, still, as in the Warhol case, the court here seems to be suggesting that if something is a core “intellectual property” issue we set aside the 1st Amendment concerns. And, as we noted in Warhol, that’s going to lead to some problematic results.

As EFF (who noted that the decision was mostly good) notes in its writeup of the ruling, we should be concerned as to where this leads:

Finally, it’s troubling that the Court went directly from concluding that source-identifying trademark uses fall within trademark law’s “heartland” to concluding that no further First Amendment scrutiny was needed. That approach is in line with a frustrating trend in trademark and copyright cases to dispense with the traditional—and more protective—forms of First Amendment analysis applied to restrictions on speech in other areas of law. Congress’s own efforts to accommodate free speech concerns notwithstanding, statutory rights never trump Constitutional rights, and we’re disappointed that the Court did not evaluate the issues here accordingly.

To me that’s the key, in both this case and in the Warhol case. The Justices in both seem to suggest that copyright law or trademark law should simply step in front of the 1st Amendment. But that can’t be. Laws cannot override the Constitution, and in both cases, it seems that a 1st Amendment analysis is necessary at some point.

Otherwise, we are repeatedly going to run into future cases where copyright and trademark law is used to silence speech, in which courts won’t even consider the expressive concerns, because they’ll argue the Supreme Court has said that copyright and trademark law override the 1st Amendment.

Filed Under: 1st amendment, dog toys, free speech, lanham act, likelihood of confusion, parody, rogers test, supreme court, trademark
Companies: jack daniels, vip products

Supreme Court Passes On Important Parody Case, Allows Cops To Treat Satire As A Criminal Act In The Sixth Circuit

Free Speech

from the I-guess-the-joke's-on-us dept

While we’re all waiting to see if the Supreme Court is willing to destroy Section 230 immunity the way it did abortion rights, more bad news has been delivered by the top court in the land. Hidden among the list [PDF] of dozens of cases the Supreme Court will not be reviewing is this one, rejected without comment by the justices.

22-293 NOVAK, ANTHONY V. PARMA, OH, ET AL.

The case dates back to 2016. Anthony Novak decided to create a Parma (Ohio) Police Department parody page on Facebook. He made a number of posts, none of which should have been taken seriously by readers. He insinuated the PD was not interested in hiring minorities, that it was performing abortions in a “roving abortion van,” would be arresting anyone caught outside between noon and 9 pm, was hosting a “Pedophile Reform event,” and had instituted a ban on feeding homeless people in hopes that starvation would allow the problem to resolve itself.

What should have been ignored instead became the focus of the Parma PD, which assembled an ad hoc task force of seven officers to determine who was behind the parody account. Once this information was obtained, Novak’s house was raided and his devices — including two hard drives, a laptop, two video game consoles, and two cellphones — were seized. Novak spent four days in jail before being allowed to bail out.

The alleged criminal act was the use of a computer to “disrupt, interrupt, or impair police services.” The Parma PD offered no evidence of any such disruption, interruption, or impairment other than it having to deal with a total of 10 phone calls related to parody page over a period of 12 hours.

Novak sued. The district court granted the officers qualified immunity. The Sixth Circuit’s first pass rolled much of that ruling back, citing the obvious First Amendment implications of allowing cops to abuse laws to silence speech they don’t like.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

[…]

Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

Open and shut. Or so it would seem. The lower court took another shot at the case on remand, somehow managed to arrive at the same mistaken conclusions, and sent it back up the ladder on appeal. Inexplicably, the same appeals court that strongly rejected the awarding of immunity to these officers found a way to allow them to escape the suit the second time around.

[E]ven with Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.

What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.

In other words, as long as cops can find a law that allows them to violate the First Amendment, they can do so as long as a bunch of other people in the law enforcement food chain nod in agreement while these far-fetched legal theories are discussed.

The ruling meant parodying police or other government agencies could be considered criminal activity, even if First Amendment case law clearly and affirmatively protects satire and parody. If cops can claim a parody made things momentarily slightly more difficult for them, that’s apparently all the probable cause they need.

It’s a decision with tons of negative First Amendment implications. It drew the attention of First Amendment advocates everywhere who submitted briefs in support of Novak. The current paragon of parody and satire — The Onion — submitted a masterful brief that was as entertaining as it was insightful.

The Sixth Circuit’s decision is extremely problematic. This rejection by the Supreme Court is a kick in Constitution’s teeth. It had a chance to right an obvious wrong but has decided, for unexplained reasons, this important First Amendment case isn’t worth its time. So, the Sixth Circuit’s decision stands. And, because it does, officers in the circuit will feel far more emboldened to engage in retaliation over what’s supposed to be protected speech.

Filed Under: 1st amendment, anthony novak, ohio, parma, parma pd, parody, satire, supreme court

The Elon Speedrun Continues; Apparently Comedy Is Not Quite Legal On The New Twitter

Content Moderation

from the careening-along-the-curve-of-hypocrisy dept

Last week, we posted a cheat sheet on how to speedrun the content moderation learning curve. It went a bit viral, but I don’t think Elon got to check it out. In the meantime, he seems to be doing his actual speedrunning in public.

Anyhoo… let’s just say that the next few paragraphs are known as foreshadowing

Back in May at a conference, Elon Musk said that he was against the idea of “perma” bans.

“I do think it was not correct to ban Donald Trump, I think that was a mistake,” Musk said. “I would reverse the perma-ban. … But my opinion, and Jack Dorsey, I want to be clear, shares this opinion, is that we should not have perma-bans.”

A few weeks before that, he said that he hoped that “even my worst critics remain on Twitter, because that is what free speech means.”

He also said that when he talked about bringing free speech back to Twitter, he meant “that which matches the law” saying that he was “against censorship that goes far beyond the law.”

And, just as a side note (by which I mean, more foreshadowing) parody has been found to be protected by the 1st Amendment, making it very much “matching the law.” And, in one important case, the wonderful judge, Pierre Leval, pointed out that parody is still protected by the 1st Amendment even if some are fooled by it. In that case, one of the claims was that a parody done by New York Magazine was not labeled as parody. But Judge Leval points out that this does not matter:

Although New York’s position would probably be stronger if its joke had been clearer, the obscurity of its joke does not deprive it of First Amendment support. First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.

Oh, and one more: after he took over Twitter, Musk declared “Comedy is now legal on Twitter.”

Alrighty. Enough of the foreshadowing. On Sunday evening, Musk decreed that impersonation will immediately result in a permaban.

That says:

Going forward, any Twitter handles engaging in impersonation without clearly specifying “parody” will be permanently suspended

Of course, as basically everyone noticed, the “impersonation” accounts that were getting suspended seemed to most be people making fun of Elon Musk. Most notably, comedian Kathy Griffin changed her name to Elon Musk and had mocked him. Some others had done something similar.

Thus, only a week into ownership, Musk has gone back on “all legal free speech,” no permabans, and hoping that his critics would remain on Twitter all in one shot. It’s almost impressive.

And, yes, you can (and I’m sure some very eager people will in our comments) make the argument that impersonating users is potentially problematic. Musk tried to clarify that he was talking about accounts with checkmarks (what used to be verified accounts, but under Musk’s leadership now mean “willing to pay $8/month”). And, yes, back when the checkmarks were about verified identity, I could see how problematic it would be for someone to impersonate someone else. That’s less so under the “pay for checkmark with no verification” setup though.

But, the key point is that this is exactly what many of us have been trying to tell Musk since way back in March. That moderation issues are not about “free speech.” It’s something else entirely.

I don’t begrudge Musk trying to deal with real potential issues that might come with impersonation. But… if he had even an ounce of self-reflection he might realize that all of these hypocritical moves he is making suggests that maybe, just maybe, Twitter and all the employees he fired, actually did have a decent (or, let’s say, very, very firm) grasp on what free speech actually means and how to manage a platform like Twitter.

And while I really had hoped that maybe he secretly did understand all this and was just hamming it up for his fans, it really appears that Musk is rushing headlong through the content moderation learning curve and making all the same moves as everyone else before him. It’s easy to declare “free speech for all” until suddenly all hell breaks loose and people are mocking you left and right.

Anyway, comedy remains legal, and in some ways, this is all very, very funny.

Filed Under: content moderation, elon musk, free speech, impersonation, jokes, parody, permablocks
Companies: twitter

Parody Post About Nintendo’s IP Bullying Hits All The Right Notes

Too Much Free Time

from the it's-a-me dept

When I repeatedly use Nintendo as something of a virtual punching bag, it pisses off some of the company’s loyal fans. This has never made sense to me. Those fans should be pissed at Nintendo and all the different avenues the company takes just to make sure being a Nintendo fan is as difficult as possible. After all, it’s not like I’m just making this stuff up. Nintendo really is the Disney of the video game world when it comes to being an IP protectionist bully.

It is so bad, in fact, that you’ll come across parody posts on sites discussing made up bullying actions and relating them back to Nintendo. Earlier this year, for instance, we discussed a post on hard-drive.net, one which is clearly parody, talking about Sega undergoing a heel-turn and deciding to be an IP bully. Or, as the post put it, “go full Nintendo.” It was close enough to sounding real to be funny, but it was parody.

Well, that same site is back with another parody article, but this time they decided to dive into the purely absurd.

KYOTO, Japan — Video game giant Nintendo has recently filed a copyright claim on the country of Italy, according to a company press conference.

“It is after much deliberation and discussion that Nintendo has come to the conclusion that we will be filing a copyright claim against Italy,” Nintendo President Shuntaro Furukawa said during a pre-recorded address uploaded to the official company YouTube channel. “The clear instances of infringement, such as adding ‘-a’ to the end of words, growing mustaches, and eating mushrooms, that have been occurring within Italy have gone unchecked for too long. It is our job to protect the hard work of our staff and executives.”

Unlike the Sega post, this one is obviously not believable. However, just like the Sega post, the only reason any of this is actually funny is because of how already absurd the behavior of Nintendo is when it comes to intellectual property matters. No, the company isn’t going to sue Italy over the supposed existence of stereotypical “Italians”. But the company’s actual IP enforcement actions are so silly and overwrought that the joke still works.

The rest of the post is short but worth reading. It has a fake quote from a big Nintendo fan that, by my reading, is fairly spot on. It’s complete with all the apologies and excuses those that remain Nintendo fans tend to roll out when the company is criticized. Having been on the receiving end, I suppose I now know what it feels like to say anything less than glorifying Elon Musk. The vibes seem to be the same.

So, it’s funny, but also kind of not funny. This is the sort of thing that only works because Nintendo really is an IP bully and maximalist company.

Filed Under: copyright, ip enforcement, parody
Companies: nintendo

Appeals Court Hands Qualified Immunity To Cops Who Arrested Someone Over Satirical Facebook Posts

Free Speech

from the how-could-they-have-known-this-would-be-unlawful dept

Back in early 2016, Parma, Ohio resident Anthony Novak decided to have a little fun. He created a parody of the Parma Police Department’s Facebook page and began posting obviously satirical announcements, like the following:

The Parma Civil Service Commission will conduct a written exam for basic Police Officer for the City of Parma to establish an eligibility list. The exam will be held on March 12, 2016. Applications are available February 14, 2016, through March 2, 2016. Parma is an equal opportunity employer but is strongly encouraging minorities to not apply.

The test will consist of a 15 question multiple choice definition test followed by a hearing test. Should you pass you will be accepted as an officer of the Parma Police Department.

Other content included announcements for the PD’s “roving abortion van,” a “pedophile reform event,” and plans to arrest anyone caught outside between noon and 9 pm.

The Parma PD couldn’t take a joke. Instead, it took action. It launched a full-blown investigation that involved seven officers, secured three search warrants, and raided Novak’s apartment to seize multiple electronic devices. Novak was charged with multiple felonies before the prosecutor’s office decided that might be a bad idea and offered a plea to reduce the charge to an unspecified misdemeanor. Novak rejected the offer. The police and prosecutor screwed around for awhile before finally deciding to charge him with disrupting police service by causing the department to be… um… mildly inconvenienced by calls about the parody page: a grand total of 10 calls in 12 hours.

Novak sued. The district court somehow found a way to award immunity to all of the involved officers. Novak appealed and the Sixth Circuit Court rolled back part of the lower court’s decision, pointing out the arrest clearly targeted protected speech. Just because the Parma PD didn’t like the parody page’s content didn’t justify the arrest, search, and criminal charges.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

It asked the district court to take a second look at the officers’ immunity claims, especially in light of their use of a law the Appeals Court found extremely questionable.

Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

Novak’s return trip to the district court went just as poorly as his initial trip. Five years after his arrest, the district court again awarded qualified immunity to the officers. It said the cops were reasonable to assume the parody page “disrupted police operations,” even if the facts on the record showed disruption was almost nonexistent and the content of the parody page was likely protected First Amendment expression. If the officers had probable cause to pursue an arrest, the lower court saw no reason to determine whether or not the page’s content was protected speech.

The case returned to the Sixth Circuit Appeals Court. This time around, the Sixth Circuit agrees [PDF] with the lower court: qualified immunity protects these officers from being sued over what is almost certainly a violation of Novak’s First Amendment rights. If there’s probable cause, there’s no reason to discuss the underlying rights violations.

No one contests that Novak used a computer and the Internet to create his knockoff page. And the officers believed that Novak’s page had “disrupted” their operations. They knew the call center had received multiple calls about the page, and the statute imposes no lower bound on how much disruption is required. So the officers could reasonably believe that the calls constituted a disruption. As to the knowledge element, the officers were permitted to rely on inferences. Here, the officers inferred that Novak knew he was disrupting operations from his decisions to repost the Department’s warning post on his own page and to delete comments that explained the page was fake.

The Appeals Court notes that protected speech can’t serve as the basis for probable cause. But it explains this apparent contradiction away by saying that because probable cause existed, the officers were free to assume (in an absence of case law) Novak’s speech was unprotected.

But while probable cause here may be difficult, qualified immunity is not. That’s because qualified immunity protects officers who “reasonably pick[] one side or the other” in a debate where judges could “reasonably disagree.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016). That’s just what the officers did—they reasonably found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. So even with Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.

What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.

At the very end of the decision, the Appeals Court tacks on a very minimal, in-word-only wrist slap for the officers who felt being parodied justified an arrest. It’s not enough.

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

That’s the problem with qualified immunity. If no one in power steps up to be the adult in the room, every government adult behaving like a child gets rewarded with immunity simply because their childish behavior hasn’t generated courtroom precedent. And when the discussion of rights violations gets short-circuited by qualified immunity questions, no new precedent is erected, allowing the vicious cycle to continue until one court finally decides the cops have gone too far.

Filed Under: 1st amendment, 6th circuit, anthony novak, ohio, parma, parma pd, parody, qualified immunity

Criss Angel Sends Ridiculous Legal Threat After Comedian Creates Parody Menu Of His Restaurant

Trademark

from the that's-not-magical,-that's-being-a-censorial-asshole dept

Harrison Greenbaum is a comedian and (sometimes) magician, who noticed that the magician Criss Angel had opened a restaurant, named “CABLP” and hadn’t registered the domain cablprestaurant.com. For whatever reason, the restaurant’s actual website appears to be Eatblp.com, and so Greenbaum registered cablprestaurant.com and created a very obvious parody menu. I mean:

It took me way longer than it should to figure out that CABLP apparently stands for Criss Angel’s Breakfast, Lunch & Pizza. Either way, this just seems like a bunch of nonsense, except that Criss Angel apparently is spending some of his very large fortune on hiring an actual intellectual property lawyer named Thomas Carulli from the law firm of KMA Zuckert to send a very bogus cease and desist letter to Greenbaum.

The letter is sillier than even I would have expected, claiming that the domain registration violates ICANN’s policies.

Dear Mr. Greenbaum:

We are counsel to Criss Angel and his companies, including that which owns the CABLP Restaurant. In a social media posting you have publicly admitted that you intentionally are infringing our clients’ trademarks and copyrights and are violating the Internet Corporation for Assigned Names and Numbers (ICANN) policies with which you and your domain name Registrar must comply.

Specifically, you admit that you illegally registered cablprestaurant.com as your domain name:

Criss Angel opened a restaurant this year called Cablp and forgot to register CablpRestaurant.com. I know this because, yesterday, I became the proud owner of CablpRestaurant.com.

I mean, even the most cursory glance by a lawyer of the caliber (and billing rate) of Thomas G. Carulli would note that this is not an admission of intentional infringement or “illegal” (WTF?) registration, but rather fairly obvious commentary in the form of parody, which is widely protected. And, because Carulli apparently couldn’t be bothered to pull up the long history of case law on this, it is well documented that domain names making use of trademarked terms to comment on the trademark holder are very much protected. There are a bunch of cases on this (and many, many, failed attempts to use the UDRP process at WIPO to take away such domains), but a key one is Taubman v. Webfeats which makes it clear that using a trademark in a domain name for the purpose of commentary is protected speech and not infringement, so long as there is no confusion (which there clearly would not be here):

We find that Mishkoff’s use of Taubman’s mark in the domain name “taubmansucks.com” is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff’s expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

There are other cases along these lines as well, and you would think that a lawyer like Carulli could have maybe asked an associate to rack up some billing time looking these up? I mean, unless the purpose was to send a bogus threat letter hoping that Greenbaum would be scared and back down.

It gets dumber.

You further admitted to setting up on your website a menu that is substantially similar to the actual CABLP menu.

If you think the menu above is “substantially similar” to the actual menu at Angel’s restaurant, you may want to have your reading comprehension abilities checked carefully, because they’re broken.

There’s more nonsense in the letter, but it’s so bad it made me pause to wonder if this were all an elaborate prank by Angel and Greenbaum together to try to let people know that Angel had actually opened a stupidly named restaurant… but, that seems too low for even Criss Angel.

Filed Under: criss angel, domain names, fair use, free speech, gripe sites, harrison greenbaum, parody, thomas carulli, trademark
Companies: cablp, kma zuckert

Parody Post About Sega Suing Its Fans Perfectly Lampoons Nintendo

Culture

from the slow-clap dept

We have long chronicled the aggressive IP enforcement tactics and behavior of video game giant Nintendo. There have been so many stories specifically about Nintendo’s animosity towards its fans when those fans express their fandom by creating fan-games that any regular reader here will be familiar with at least some of them. While gaming company responses towards fan-games are certainly more of a spectrum than something black and white, Nintendo probably takes the crown for the least permissive gaming company for this sort of thing. So much so, in fact, that we highlighted its former chief rival, Sega, when it took the opposite tact with folks making Sonic the Hedgehog fan-games.

Well, someone out there took the time to create a parody news article about Sega doing a heel-turn on this in a way that seems mostly dedicated to skewering Nintendo for its aggressive, anti-fan behavior. The headline for the comedy post is, appropriately, “Sega Announces They Will Be Using Fan-Game Creators To Develop New Sonic Lawsuit.”

Let’s dive in.

Sega announced today that, after a down-period of creativity in its staple Sonic franchise, the company will be reaching out to fan game developers to create new and exciting lawsuits.

“For years, people have said that Sega’s Sonic games lack that magic from the original games, while fan games have become impressive standalone titles,” said Sonic team leader Takashi Iizuka. “We worked with fans to make Sonic Mania and then everybody was all like ‘oh I guess the fans are better than Sega at making their own game,’ so now we’re switching up the strategy, because fuck you guys. From now on, we have to go full Nintendo and sue these fuckers for every single penny they’ve got. These people have spent their own time and money creating beautiful, loving tributes to Sonic games, and they thought they could just get away with it. Sonic Team is honored to take these longtime fans, some of them even just kids, and drag them kicking and screaming behind bars where they belong.”

“Go full Nintendo.” Sega and Nintendo have taken starkly different paths interacting with their most dedicated fans and this fictional post is essentially poking fun at the latter by satirizing what it would look like if Sega got aggressive. More to the point, it does a useful job of pointing out, given that all of this is not true and done for comedic purposes, that Nintendo could exert less control and allow its fans to express themselves if it wanted to. If Sega can do it, so can Nintendo.

But Nintendo doesn’t want to do this. It values strict IP control over everything else, even as many argue doing so is against its own monetary interests.

Go to the link for one fun fictional comment from a Sega fan being put into the back of a squad car, but I couldn’t let this post be written without including the final paragraph from the post, because it’s just so, so good.

Despite the lawsuit, Sega admitted they were incredibly thankful for the fan designer’s unique, exciting ideas for Sonic games that they could completely ignore for the next decade. They then announced their new game Werewolf Sonic 2: Sorry, Fuckers will be arriving in 2023.

While this is all quite funny, it’s also frustrating trying to understand why in the world Nintendo is willing to endure being the butt of these particular jokes, not to mention the negative aspects of its reputation, just because it wants to squash its own fanbase. In nearly all cases, the company gains nothing and loses at least some measure of goodwill and respect. Put another way, if you took this parody article and replaced every reference to Sega with Nintendo, it wouldn’t be that far off from reality.

Why a beloved gaming company wants that for itself is an open question.

Filed Under: fans, ip, ip enforcement, lawsuits, parody
Companies: nintendo, sega

Trader Joe's Threatens Man Over Parody 'Traitor Joe' Political T-Shirt

Trademark

from the parody-to-a-tee dept

The last time we found niche grocery chain Trader Joe’s playing intellectual property bully, it was over one enterprising Canadian man who drove across the border, bought a bunch of good stuff from Trader Joe’s, and then resold it at his Canadian store called “Pirate Joe’s”. While that whole setup is entertaining, Trader Joe’s sued for trademark infringement in the United States, which made zero sense. The store was in Canada, not the States, reselling purchased items is not trademark infringement, and Trader Joe’s was free to open up Canadian stores if it chose.

Fast forward to the present and Trader Joe’s is trying to stretch trademark law yet again, this time to go after one man’s website that is selling parody t-shirts with a picture of Joe Biden and the moniker “Traitor Joe”, all mocked up to look like the store logo. Trader Joe’s sent a threat letter to the man, Dan McCall, who was represented by friend of the site Paul Alan Levy.

I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe’s from a BigLaw attorney lawyer who, considering his claim to be a “seasoned intellectual property litigator,” really should have known better than to subject his client to the Streisand Effect.

You can see the image in question below.

I’ve included Levy’s response embedded below so that you can read it in full. Now, if McCall sounds at all familiar to you, it’s because he’s made a habit out of annoying large institutions by creating parody logos of their branding. Hillary Clinton, Bernie Sanders, the NSA, and DHS have all come calling for him at some point. This is part of the context of Levy’s note that competent counsel really should know better than to send this threat letter: McCall and Levy have been through this before and they’ll get through it again.

As to the merits of supposed trademark infringement, well, the response letter does a fairly thorough takedown of any such arguments. Levy starts off by pointing out to Trader Joe’s that literally nobody is going to think it endorsed or produced this t-shirt. In fact, the company’s own threat letter notes how this puts the company in a bad light, so why would it also think the public would think the shirt came from Trader Joe’s?

But the real trump card in all of this is that the t-shirt is protected speech as parody.

Trademark law aside, McCall’s use of the image to comment on the President of the United States, while playing on the name of a leading grocery store chain, is speech squarely protected by the First Amendment. Consequently, any application of trademark law to quash such uses would be highly suspect. Although McCall’s products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

There’s a bit more in there, including an odd copyright claim over some of the imagery and the fact that Trader Joe’s invoked the DMCA against McCall even though his company, Liberty Maniacs, is not an interactive website allowing user input, but that’s more icing on the cake type stuff. What is made clear in all of this is that Trader Joe’s has a legal team that is making quite spurious threats that would be highly likely to be defeated in court.

Filed Under: dan mccall, parody, paul levy, t-shirts, trademark, traitor joe's
Companies: trader joe's