IANAL but...
It's fair use because:
-it does not commercially impact the original product
-it is not passed off as one's own creation (or has been heavily recontextualized and comprises an original work)
-intent
But parody and fair use don't apply necessarily, since this is a corporate mark. So...
Trademark law:
-it only superficially resembles the original mark
-it does not cause confusion in the mind of the consumer
-it is not used to represent a competing company/product in the same industry
-intent
A (ahem) "good" lawyer would send a cease and desist, just in case, and likely never even follow up, b/c that's what they do. "Good" trademark and copyright lawyers like a good old fashioned chilling effect more than they like litigation. Where they might--*gasp*--lose. In other words, even if a lawyer says it's wrong, it doesn't mean it is anymore than it's right becasue they don't say anything about it.
BTW, Penny Arcade could have won. They needed Shortcake's image of innocence and manufactured air of wholesomeness in order to juxtapose it and deliver "the shock of the unexpected" (from defense arguments in Disney v. the crators of Mickey v. The Air Pirates.)
They backed down on the grounds of not caring enough of a shit to deal with it. American Greetings was just about ot re-launch the brand, and would have fought to the quick, and maybe even won, and set yet another horrible precedent for frivolous suits.
--jeremy
On 3/15/06, Jeff Spaleta <jspaleta@xxxxxxxxx> wrote:
On 3/15/06, Greg DeKoenigsberg <gdk@xxxxxxxxxx> wrote:
> And when a lawyer comes to me and says "this silly mockup on a website is
> an improper use of our logo," I'm going to point them to this little law
> called "fair use". Specifically, to the "parody" clause. Protected
> speech under the US constitution, dontchaknow.
what is being parodied here? I look at that and I see a parody of
shadowman... not a parody of "fedora." I mention it, because there
are established limits on how protected mark A can be used in a
composition parodying protect mark B. If he had made a parody of the
fedora mark in the same style as his free-handed shadowman i think
your lawyers wouldn't even have batted an eye. As it stands, they
might rapidly blink for a few seconds like they are staring into the
sun when they see that image.
A not completely unrelated situation occured between penny-arcade, a
site that does nothing but parody as a genre, and american greetings
the owner of the strawberry shortcake marks. A non-lawyer's thoughts
on the matter can be found
at http://www.scalzi.com/whatever/002368.html
-jef"Does the argument I made about the limitation on parody hold up?
Who cares.. I got to make a contextual link to the censored
penny-arcade comic... which is the real goal of every conversation I
get into"spaleta
--
Fedora-marketing-list mailing list
Fedora-marketing-list@xxxxxxxxxx
https://www.redhat.com/mailman/listinfo/fedora-marketing-list
-- Fedora-marketing-list mailing list Fedora-marketing-list@xxxxxxxxxx https://www.redhat.com/mailman/listinfo/fedora-marketing-list
