That said, I went and did a little research, and I discovered a small fact that said American Greetings would probably have won the case. The reason is simple – it was not based upon copyright. It was based upon violation of trademark. And there the case is much more favorable to the card company.

Had the folk at Penny Arcade changed the names slightly – possibly as small as “Berry Shortcake” for example (though that’s cutting it close) – they might have won. However, the cease and desist letter was specifically directed at the use of the Strawberry Shortcake, Custard, and Plum Puddin’ marks. (Custard is dangerous ground for the company alone, but in context with the other two — especially with the apostrophe’d puddin’ — is probably quite defensible as a trademark.)

Bluntly, American Greetings was well within its rights to demand the withdrawal. That they did it in a ham-fisted manner that set themselves up as the bad guys in what is now an internet legend… yeah. They really should have discussed this with their PR department as well as their attorneys.

If you used Dorothy from Oz (“American McGee’s Dorothy”) or Little Miss Muffet, or Goldilocks, or Sleeping Beauty, you’d get a very similar result. It would be pretty much the exact same comic, and carry the exact same message. If you can substitute another IP and still have the same message, to me that says that Strawberry Shortcake is not the target of the parody.

“The court found that The Cat NOT in the Hat! was not entitled to a parody fair use defense because it failed to target the original work.”

The poster pokes fun at both its targets. Indeed, most viewers would say American Greetings’ Strawberry Shortcake is the primary target, with McGee’s Alice being a secondary. No, let me be more precise, I perceive it that way, as have most of the people who have pointed the cartoon out to me, as they all refer to it as the Penny Arcade’s Strawberry Shortcake, not Penny Arcade’s Alice.

I do regret being unclear – I let my mind go in way too many directions and so failed to be precise.

I also need to back up from an earlier statement. PROBABLY, not CERTAINLY, had Penny Arcade had the money, they’d have won. They are definitely poking fun at Strawberry Shortcake, which Penguin’s Cat NOT in the Hat failed to do to Seuss. (In fact, there are several paragraphs not only in the District decision but in the decision to which it refers which point out the intent not to parody but to use as a hook to sell yet another story about OJ.) Pretty much every test on which Penguin’s book gets hammered is passed by Penny Arcade.

In the end, though, it’s immaterial. First and foremost, because the cartoon was pulled instead of being fought in court. Second, and almost as significant, because it’s become an internet icon. As the bear said, if he’s asked to pull it down, he will – and someone else will put it up.

‘[16] We completely agree with the district court that Pen-
guin and Dove’s fair use defense is “pure shtick ” and that
their post-hoc characterization of the work is “completely
unconvincing.”‘

to be particularly damning.

But the reason we come read is because we enjoy what you write – whether we’re being edjumacated or entertained, it’s worth our time.

so… have a banana.

I’ll never understand why so many people that are smarter than me visit this blog.

I feel like I should ask for payment in donations of bananas.

The biggest reason for pulling it is that copyright fights are long and expensive, and American Greetings has a lot bigger pool for paying attorneys than Penny Arcade does. But as to the case itself,

As to the situation itself, I’ll point to a Ninth District case and decision in particular. Called in public the “Cat in the Hat” case, it’s proper label is Dr. Seuss Enterprises v. Penguin Books USA. Quite simply, it is a book (The Cat NOT in the Hat) hammering OJ and the murder, written in the style of — and indeed using images extremely close to — Dr. Seuss’s (T. Geisel’s) Cat in the Hat. Dr. Seuss estate (in the person of his widow) brought suit.

Pretty much exactly the case you said – hitting OJ in parody — by using a weapon that belonged to someone else (the Cat).

The Supreme Court refused the appeal.

There are other cases that involve parody, but that’s the benchmark for this sort of thing – where you do a parody that skewers one target by using the style/image/etc of another target. In other words, pretty much most of Weird Al Yankovich’s output.

No, if the Penny Arcade crew could have afforded the cost of attorneys, they’d have eventually won. I think they call it a pyrrhic victory.

And you write a great blog. :)

On the other hand…

I love that pic, and I feel that it mocks Strawberry Shortcake pretty good. It may not do so as satire, but I know I’LL never look at Strawberry Shortcake the same after seeing that.

And did you see Penny Arcades’ version of Pooh? Hold on, I got that pic somewhere….