Brendan Douglas Jones has begun posting book three of one of my favorite webcomics, Breakfast of the Gods. “The war for Cerealia starts now. Who will live? Who will die? Who will stay crunchy in milk? Read on to find out!”
For folks who haven’t already been reading Breakfast of the Gods, book one starts here. But don’t read it if you’d be offended by graphic violence, or by violation of trademark. Lots and lots and lots of yummy violation of trademark.
(Actually, I think Breakfast of the Gods might fall under “fair use.” If it doesn’t, the law should be changed until it does.)
(Not totally relevant, but I only read yesterday that the vocalist who sings “You’re A Mean One, Mr. Grinch” in the Chuck Jones animated version, was also the voice of Tony the Tiger. I mean, it’s obviously the same voice, now that I think about it, but I never noticed.)
(And listening to that led me to this utterly delicious pop cover of the song by Sixpence None The Richer.)
Thurl Ravenscroft! Best name ever!
God, now I want to name a child that.
—Myca
the host of sinister cinema in portland in the 70’s had a mascot named ravenscroft.
i’m usually super conservative about copyright and trademark, but i agree – crunchy-delicious violation! [and really, free advertising for them.]
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By this point the characters are a valid part of pop culture And for the love of god, if Drawn Together is allowed to use these characters then this comic should be fine, at least in a just world.
Meantime, the comic is awesome. It would be a really cool action comic, except the characters are cereal mascots, which makes it funny. Also those Grinch covers also awesome.
And on a related unrelated note, you do know that the voice of the Honey Nut Cheerios bee is done by Billy West, who’s other roles include both Ren and Stimpy, as well as Fry, Zoidberg, Professor Farnsworth and Zap Branigan.
This reminds me of one of my all-time favorite prank threads on the LJ Comm “Bad Roleplayers Suck.” Kerfuffle in a Cereal Mascot Fandom RPG!
The best part, of course, was the inability of so many of the fandom gamers who frequent that comm to realize that it was, y’know, satire.
Hmmm. Last time I posted about intellectual property law, I got thread-banned for making an inoffensive comment that complied with the rules of the blog. Let’s see what happens this time.
“Fair use” is a defence against copyright infringement; it is inapplicable in any other cause of action.
It is possible that a person’s use of a copyrighted trademark might be deemed simultaneously fair use of copyright but an infringement of trademark.
How Dare You! Banned!
…just kidding.
Actually, to be very pedantic, there is a fair use of trademark, but you are right that it has no applicability to this situation. Fair use of trademark is descriptive or directly referential. Writing a novel in which a character is described as “driving a Ford” or “wearing Nikes” is fair use of trademark. Making a movie called “Fox Attacks!” in which the Fox logo appears is fair use of trademark. The later case (and the Anita Blake novels) push the edge of trademark violation by their repeated use of the same trademarked items. “Fox Attacks!” is presumably protected because the repeated use of the Fox logo is unlike to lead anyone to believe that “Fox Attacks!” is endorsed by Fox.
Making a comic in which trademarked characters make up the entire cast a fair use of trade mark would require a very, very narrow definition of trademark indeed. Presumably, we would want to distinguish this case from the case of someone writing a novel in which characters sharing the names of all of tyhe Harry Potter characters have adventures (actually, I’m not sure that I should presume that of Amp’s view of trademark, I think Amp’s position might be “To Hell with trademark”, but I think there is value anyway in looking at what, short of tossing trademark entirely would allow this as fair use). I suppose you could allow a broad exception to trademark protection for trademarks that did not originate with fictional works to be used in fictional works by anyone, but this would require somehow defining the super-short animated stories in which most of these characters originally appeared as not being fictional works. Or we could categorize all trademarked figures created to sell products other than the work of fiction in which the characters appear as receiving lesser protection against being used in fictional works. This would create the edge case of trademarks associated with works of fiction arguable designed to sell products (such as most modern children’s television characters, was Dora invented to tell stories or to sell backpacks?). Or we could disallow trademark from restricting the publication of works of fiction which were good, which would be a pretty radical transformation and restriction of trademark.
That link to book three isn’t working at all for me.
That link to book three doesn’t work for me either. It seems to be referencing a page on this blog.
Link to book three has been fixed; thanks for pointing it out.
* * *
Daran, Charles, thanks for correcting me regarding fair use.
Charles is correct that in my ideal world, the position would be “to hell with trademark!” It’s a restriction on speech, it helps corporations but hurts consumers of art, and it sucks.
My fallback, not-quite-ideal world position is that trademarks should be limited to controlling what companies can use in their mascots and advertising, but shouldn’t limit the ability of artists to comment on, satirize, or create substantively new works based on trademarked properties.
So, for instance, it would be illegal for General Mills to start drawing Tony The Tiger on boxes of Cheerios — for commercial mascot uses, Tony belongs to Kellogg’s. However, something like “Breakfast of the Gods” would be legal.
For me, trademarks (like all IP policy) is a balance between protecting the rights of artists, promoting the incentive to create, and preparing a healthy substrate on which the culture can grow.
Too strong a protection of trademark means that the culture becomes hostile to derivative works – and that would suck. Derivation is such a powerful took for the creation of new culture. It’s not that we wouldn’t get any new novels if it were impossible to make cartoons about Tony the Tiger; it’s that being overly protective of Tony slowly erodes the founding assumptions of playfulness and culture commonality that we want to see in the creative world.
On the other hand, if you don’t protect the rights of the creators (whether they are General Mills or some shlub cartooning in his Ohio basement) then some of the motivation for creation goes away. I’m sure we’d still have art and culture even if it were impossible to make dime one from that kind of work, but I’m equally sure that there would be a lot less culture if it weren’t for the profit motive.
I’m inclined to (gasp) agree with Amp, that the use of the trademark should be strongly protected when it is in direct competition, but much more weakly protected when there is a clear parodic or derivative-work type of creation going on.
Thanks for fixing the link.
Breakfast of the Gods makes my nipples go all hard and pointy.
I think there is value anyway in looking at what, short of tossing trademark entirely would allow this as fair use
We’ve seen some good ones, but there’s also the fact that nobody seems likely to mistake this for endorsement (as with the movie you mention).
So if I were to market a shoddy, ill-drawn cartoon called “Hereville” under the name “B. Deutsch”, you’d have no problem with that?
You have infringed Robert’s copyright on that joke.
There’s two different issues brought up by your question: property rights in Hereville, and false claims in advertising.
I don’t think you should be allowed to market a comic I didn’t write or draw as being written and drawn by me, for the same reason I don’t think you should be allowed to manufacture polyester shirts and label them as “100% cotton.” Whether it’s art, shirts, food, or anything else, I think consumers are entitled to honest information about what they’re buying.
So that, I would have a problem with.
However, I feel pretty confident that readers would rather read my Hereville than a shoddy, badly-drawn Hereville. As far as that goes, I’m willing to let the market decide.
You have infringed Robert’s copyright on that joke.
In the interests of a broader and more interesting culture, I release that joke into the public domain.
Yes, I’m a giver.
A better analogy would be shirts labelled “Armani” when not manufactured by them
That’s the point of trademark law – to ensure that marks provide “honest information” about the indentity of the producer.
I’m passingly interested in your comic-related posts, but to be honest, those cartoons you (and others) consider poorly drawn (your own work, and that of others) look to me just as good as those you think are well-drawn. That says more about my lack of refinement than it does about the quality of the cartoons, but I doubt I’m alone in that respect.
That’s not “the” point — at most, it’s “a” point.
For example, under current trademark law, it would be illegal for me to release a non-satiric novel entitled “Harry Potter And The Dubious Wand, written by Barry Deutsch, and not at all authorized by J.K. Rowling.”
I agree that only a small group can tell the difference between a badly-drawn comic and a well-drawn comic. However, the small group of people who buy alternative comics has a lot of overlap with the group who can tell the difference.
However, let’s assume that you write and draw a good “Hereville” comic book. I still think it should be legal. And I suspect that would actually benefit my sales, just as Alan Moore’s comic book sales go up whenever there’s a movie based on one of his comics (regardless of how bad or good the movie is). Reading a good comic about a world doesn’t tend to make readers think “well, I’m done with that; no need for any more”; it tends to make them more likely to buy more.
(In my trademark and copyright scheme, I might as well point out, there’d be “mandatory licensing” laws. Under such a law, I couldn’t stop you from publishing your Hereville comic — but you’d be required to pay me a royalty from every copy sold.)
A mandatory licensing law takes away the leverage of how much that licensing fee should be from the IP owner to the person who wishes to use the IP. I think that’s wrong. If you want to use my property, I should be able to say “No” if you’re not offering me what I consider enough money.
That says more about my lack of refinement than it does about the quality of the cartoons, but I doubt I’m alone in that respect.
They say no one ever went broke underestimating the taste of the American public. It’s probably pretty hard to underestimate the taste of the British public too.
However, let’s assume that you write and draw a good “Hereville” comic book. I still think it should be legal.
Does that mean that you’re ok with Hereville fanfic?
IP is incoherent with “property rights” as most libertarians conceive of the latter. It isn’t ownership of a thing, but a state-imposed restriction upon what other people can do with their property (including their own bodies).
Hereville slash?!?!
Your stated position: “to hell with trademark” implies that your are in favour of ‘abolition’, with ‘reform’ a second choice.
“To Hell with trademark” was meant to be a humorous exaggeration; I think my more detailed statements have made it clear that I’m talking about radical reforms of IP, not complete elimination of IP. Sorry that was unclear.
Whether or not I’m “okay” with fanfic is a separate question from whether or not I should have the legal right to prevent fanfic. :-)
I would be okay with some fanfic, not okay with other fanfic. (Slashing the non-adult characters, for instance.) But regardless of what I prefer, I don’t think I should have any legal right to prevent fanfic.
RonF, I’d say it comes down to which you think is more essential — free speech, or IP. We should try to have laws that respect both, but where no compromise can be reached, I think we should favor free speech.
(In my trademark and copyright scheme, I might as well point out, there’d be “mandatory licensing” laws. Under such a law, I couldn’t stop you from publishing your Hereville comic — but you’d be required to pay me a royalty from every copy sold.)
That might end up putting you in the uncomfortable situation of more or less having to take money from a piece of artwork you don’t approve of. Apart from underage slash, which I find too horrible to contemplate in detail, suppose someone wrote a Hereville comic in which Mirka becomes a fundamentalist Christian and dedicates her sword to Jesus? Or one in which she moves to Israel and slays monsters that are transparent stand ins for Palestinians. I suppose you could just donate the royalties to some group that countered the damage, but still…
Incidentally, if you want us to stop using Hereville as an example, please just say so and I at least will stop.
I see what you mean about having to accept money from dubious sources, but I could always refuse to cash the checks, or donate it all to charity. That still strikes me as the “lesser-evil” option, compared to our current trademark and copyright scheme.
I think it’s good that we’re using Hereville as an example — it keeps people from assuming that I’m only saying this stuff because I don’t create anything myself, or haven’t thought about it applied to my own work. :-)
I do not see a conflict here between free speech and IP. What the person in the example is trying to do is to take your IP and use it as his or her own IP. That goes beyond free speech. If they did it for free and acknowledged you, that’s one thing. But representing your IP as their own work, or seeking to use your IP to create profit for themselves is not free speech in either sense of the word. That’s theft.
BTW, thanks for this post, Amp. I had no idea of the existence of this comic until you started this thread. It’s GRRRRRRRREAT!
BTW, thanks for this post, Amp. I had no idea of the existence of this comic until you started this thread. It’s GRRRRRRRREAT!
I second. Though I wonder if there isn’t a subversive undertone to the comic…at least two characters have betrayed their ideals for a chance to get ahold of the cereal of their choice…is sugary breakfast cereal, after all, the root of all evil, at least in BOTG?
Thanks, Barry, for the great shout-out.
This has been, far and away, my favorite blog/thread/commentary of my comic to date. I really appreciate all the kind words and – perhaps more so – the free-form debate of the legal pitfalls and loopholes I may yet have to negotiate in the future. I’ll admit, I began the project in a completely naive frame of mind where all of this was concerned. My attitude not quite “to hell with trademark,” but more, “really? Post, General Mills, Kelloggs, et al, would give a flying flip about my little funny book?” In my mind, I saw a direct correlation between BOTG and the satirical work of Mad magazine, Steve Gerber and even crazy ol’ Wally Wood. But, they protected themselves with surface alterations of their targets, I admit I felt unwilling to dilute the impact of the satire by disguising the characters. Is it more effective to see Cap’n Crunch swing a bloody sword, or some vaguely similar fellow named Commander Crisp? Do I have a right to tell my own story using these icons? Legally, probably not. But, in a way I feel I (and all of us who grew up with them) do own these characters, just like I own those memories of Saturday mornings in the ’70s and ’80s.
Anyway, before I get too maudlin, I’ll just state that I’ve done as much as I know how to do to keep BOTG, as it exists, out of the legal cross-hairs:
I make no money from BOTG.
I take pains to state that I am not the creator of any of the characters used.
I name each character (even the most obscure background cameo) and ascribe to them their corporate owners.
I’m working in a field of which none of these companies has an interest; i.e. comics. So there is no direct competition. The day I start marketing my own sugar-frosted breakfast cereal, then, maybe, I’ll need to hire a lawyer.
At this point, my only wish is to see the whole thing done. Whether or not it lives on in any other form than a website, it will have at least been made and read and, hopefully, enjoyed. I think, for as dark a piece as it can be, it’s actually done a lot to trigger nostalgia amongst its readers. And, yes, I think I’ve probably been responsible for some cereal sales over BOTG’s run.
I hope you folks will stick with the book to the bitter end and, on a personal note for Bjartmarr, you should probably see a doctor about that.
Calling it “propery” and “theft” begs the very question. Three days ago I could have written the above paragraph and there would have been no question that it was pure speech. How is not speech now?
It’s still my speech. You haven’t taken it. You have not represented it as your own speech. You aren’t trying to make money off of it. And I don’t own a copyright to it (at least, in my limited understanding of the law). Even if I had, quoting me in order to respond to me is “fair use” both legally and morally.
So?
Limited to the point of being incorrect. You do own the copyright on it, from the moment it became fixed in a medium. (This assumes that you didn’t copy it from somewhere else.)
That is correct. Quoting for the purpose of commenting is well established as both “fair use” in the US, and “fair dealing” under the UK’s far less permissive copyright regime.
I had been under the impression that to possess a copyright to a work I had to claim it. I thought that if I put it out in public and made no claim to it, then I didn’t own any copyright to it.
Not since…what, 1948? Claiming copyright makes it much easier to get higher damages for willful violation, but that’s about it.
RonF:
Bjartmarr:
Later than that: 70s or 80s at least, assuming that by “claiming” copyright you mean attach a copyright notice. The issue has come up in SCO vs. IBM as some of the early Unix files were published without notices.
Alternatively “claiming” copyright could refer to the act of registering it at the Patents and Trademarks Office. You need to do this before initiation legal action for infringement. It’s not, however, the act of registration that establishes copyright in a work, nor the act of publication. Copyright is established automatically as soon as the work is embodied in a fixed medium.
So is a blog considered a fixed medium?
Your words are stored on a hard drive in a server some where. That’s the fixed medium.
Is that a legal fact or your opinion? Is there any law or cases on that? Nothing personal, I just want to know if this has been tested or not.
http://www.copyright.gov/help/faq/faq-general.html
My bold.
http://www.latimes.com/business/la-fi-mickey22-2008aug22,0,3228580,full.story