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The Potatoes Are Not Mashed, But Others Things Are

There’s a discussion that’s been taking place in various corners of webcomicdom about forever in re: Whose IP Is It, Anyway? This particular iteration of the question started when Joel Watson noticed a startling similarity between one of his t-shirts and one offered by TeeFury (Watson’s tweets on this matter appear to have been deleted, but at one time the initial tweet resided here) (and Kris Straub has a good recap of the issue here).

T-shirt thievery happens regularly enough that you can almost set your watch to it, but the wrinkle this time is that both Watson’s shirt and TeeFury’s bore as their central content a Doctor Who/Peanuts mashup based around Lucy’s ubiquitous psychiatric help booth and the “The Doctor is IN” sign thereunto. Watson wanted TeeFury to not be stealing his design, but others opined that since Watson created neither Doctor Who nor Lucy’s booth, how much of the design could be called “his” was unsettled.

Enter Scott Kurtz, who while not denying the prevalence of remix culture or his own part in appropriating cultural touchstones for personal enrichment, also held that the remixer should acknowledge that it wasn’t really an original idea in the first place and that at best you could:

[H]ope we flew under the radar. Sometimes people got C&D letters. Sometimes they didn’t.

I was one of the first people to try to make a buck off of the “Han Shot First” shirt. I understand the practice all too well. But it’s one thing to try to make a buck off a larger cultural meme, and another to claim that you’re the only person who’s allowed to do it.

Straub had essentially the same idea, but perhaps a little more diplomatically:

I don’t know what constitutes an original idea anymore — or rather, I feel if you have to peel back layer upon layer of existing intellectual property to get to the part you’re actually responsible for, it’s not nearly as much yours as you’d like it to be.

The most useful information in the entire contretemps is probably that pointed out by Chris Hallbeck in a reference to the Stanford Copyright & Fair Use Center’s list of precedential cases; it would appear that the only case law on combining IPs (without the intent of parodying either) holds that it’s infringing:

An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author’s work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)

Disclaimer: I am not a lawyer, but it would appear to me that the famed Penny Arcade Strawberry Shortcake case would not necessarily fall into this precedent (since it was intended to parody American McGee). But who the hell knows? I’d submit that at this point it’s all unsettled law until some sufficiently broad ruling from the Supremes gets rendered, which doesn’t happen all that often. In any event, it’s not that long before we have to worry about infringement on far more than t-shirts¹.

¹ A discussion that is written by an Actual Lawyer (albeit a Canadian²), and which gets bonus points for the use of the tragically underused word foofaraw³.

² No disrespect to our future conquerors neighbors to the north; I merely indicate that jurisprudence is different on the two sides of our mutual border.

³ Scrabble players, if you can pull this one off, even the great Hodgman will tip his hat to you.

Ugh, and people wonder why I try to sidestep the whole “making money off fanart” idea altogether.

I’d have to disagree with you on the Strawberry Shortcake bit. IANALEither, but it seems to me that parody would be if they were making fun of SS herself. Since they’re using her to make fun of something unrelated, it’s satire.

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