Last weekend I spent several of the precious moments I have left on this planet sitting at a table at the inaugural Flower City Comic-Con, which was held in beautiful That City Where I Live (also known as Rochester, New York).
I made new friends, introduced many folks to the glories of my work and very nearly caused Farscape’s Gigi Edgly to miss her flight so that she could sign a last minute autograph for me (by the way, what’s a “frelling drannit”? ‘Cuz she called me that about three times).
But as always, the REAL fun was having my photograph taken with the costumed weirdos who invariably abandon their posts twirling cardboard signs in front of local Moneytrees to turn up at these shows. Unfortunately, their adorable costumes belied their violent natures.
|Who would want to harm little ol’ me? Well, just about everyone it turns out.|
|Never mistake Snake Pliskin for Nick Fury! It’s not the beating you’ll get, it’s the twenty minute monologue he’ll deliver about objectifying his eye patch.|
|I said a little off the top, not a little of the top off! ARRRGGGHH!|
|That’s Sally from The Nightmare Before Christmas, and a human skeleton from… my body?? (glorp!)|
|“‘Peggy Carter?’ Never heard of her! Come on… you just got lazy with your Carmen San Diego costume, didn’t you? OOF!”|
|Aww, poor Lambchop. Without Shari Lewis she’s been reduced to doing open mics at coffeeshops, reciting slam poetry about her college lesbian encounters.|
|On the left, famous painter Joe Jusko. Hey Joe, how’d you like to do the cover for the next issue of PEEK? I can’t pay you, of course, but the exposure would be…|
|Alright, you win! Ten contributor’s copies, but that’s my final offer!|
|“Come father, let us embrace at last!” Kyoko from Madoka Magica was only too happy to reenact my favorite scene from Excalibur!|
|Since Weapon Brown is kind of a male Furiosa, it was only a matter of time before a girl version of Immortan Joe showed up. Of course, she didn’t like it when I asked her if she’d cosplay as my favorite character from Fury Road: that naked chick in the cage!|
|Dalek Nyder, I have to know: what do you think of Weapon Brown??|
|I get it, I get it! It sucks!
…But enough of this butt-sniffing, you wussy R2 unit! Let’s see how you fare when I assume… MY ULTIMATE FORM!
|Oh shit. You have an ultimate form too, huh? Um… can’t we all just get along?|
|Spider-Man and the Joker?? You two are working together now??|
|Check it: me and rising superstar Matt Lintz (of Pixels and the upcoming Free State of Jones). Hey Matt… I’ve got a screenplay that would just be perfect for Donkey Kong. Do you think you could introduce us??|
The world’s most red-hot political controversy continues! But not here. Here we are talking about fukkin’ T-shirts.
So, if you remember from an earlier post, last week I took umbrage with the coverage that an online T-shirt retailer, Liberty Maniacs, was receiving as they fended off a complaint from a lawyer representing the campaign of Bernie Sanders. Liberty Maniacs has created a T-shirt incorporating a barely transfigured version of the trademarked Sanders campaign logo, and dressed it up in the noble garb of “parody”, which is, of course, protected speech. Half a zillion websites rushed to the defense of Liberty Maniacs, calling Bernie Sanders a crusty old cocksucker with no sense of humor, and why can’t his high powered lawyers–from WALL STREET?!? Wouldn’t that be fucking IRONIC!–just leave Liberty Maniacs alone to sell their knockoffs of Mr. Robot merchandise in peace?
Now, I loves me some parody, and I am not saying that what Liberty Maniacs has done isn’t necessarily fair use of the logo. Under the law, there are many kinds of fair use of protected trademarks. But I am dubious as to whether what Liberty Maniacs has done is genuine parody.
To drive that point home, I created a T-shirt mock-up that incorporated Liberty Maniacs’ own trademarked logo, and contacted the company’s owner, Dan McCall, asking if he would consider my shirt to be parody or infringement. I also posted a link to our resulting exchange on the website of the lawyer defending Liberty Maniacs, one Paul Levy of Public Citizen, a non-profit citizen’s advocacy group.
Paul contacted me through my website and by e-mail, and we eventually spoke on the phone. Although he apparently has no horse in the race as to whether my T-shirt scheme is itself a parody, he had a lot to say about Liberty Maniacs’ work, as he has defended them several times (successfully) against claims like the one the Sanders campaign’s lawyer is making.
Paul then sent me a detailed commentary on this matter, which also touched on our personal conversations. Here is what he had to say, with my ripostes spliced in. (Note: most of Paul’s comments can also be found in a blog on his own web page.)
You have gone seriously astray in three respects. First, you are apparently focused on ways in which people do parodies of logos – certainly if it is the logo that is being parodied, then you make changes in the logo. But if the objective is to parody the trademark owner, then by all means the logo can be used to identify the trademark owner. We often see that with respect to attacks on Barack Obama, which use his familiar Obama rising sun logo, unchanged, in the context of disagreeable criticism (for example, here and here. Similarly, we often see attacks on Wal-Mart, using its familiar blue-block name with a star in the middle, perhaps with the cursive Always across it, but coupled with words that express disdain for what Wal-Mart “always” does (for example here and here). Similarly. what McCall did here is use the Sanders campaign’s logo to make clear which “Bernie” is the target of his design’s commentary, and he does it in a way that poses no likelihood of confusion about whether the campaign is behind it.
I think the critical issue here is the meaning of the word “parody”. Paul seems to be conflating it with another, related term: “satire”. Parody is specifically about transfiguring what is recognizeable to give it new meaning or expression. The examples he cites do indeed use all or part of a famous trademark, but the resulting parody turns the trademarked graphic against itself to comment on the mark’s owner. So Obama’s “O” becomes a letter in the term “B.O.”, which are the President’s initials, but also the abbreviation for body odor. The completed comment, “B.O. Stinks”, is then obviously a clever political commentary, but one that would lose much of its content and worth without the benefit of the Obama logo.
Likewise, the use of the Wal-Mart logo in the other examples leaves the graphic “Wal-Mart” alone, but then lampoons another part of Wal-Mart’s advertisements, the text and graphic regarding Wal-Mart’s “always low prices”. Taken as a whole, the trademark has been parodied, and through it, Wal-Mart has been ridiculed. The message could have been delivered using the same words but not the existing graphics, but the message would lack any punch.
In the case of Liberty Maniacs, the entire Sanders logo is intact except for a tiny change to a small graphic of a star, changing it into something resembling a Soviet star. Is that enough to call it a parody? Perhaps. But this is a very meager innovation, and if the Sanders logo were put on a T-shirt alone with only that small change, it is doubtful most people would recognize the innuendo.
The T-shirt thus requires more than just the Sanders logo to sell the message, so a cartoon of Sanders’ face alongside the faces of famous communists is added, as well as a tag line under the logo that reads “is my comrade” (Collectively, “Sanders is my comrade”). But the term “is my comrade” refers to nothing in the existing logo (the true Sanders logo does not say “Sanders is my” anything.) Therefor, this additional text is not like the Wal-Mart example where “Wal-Mart’s low prices” becomes “Wal-Mart’s low wages.”
But for the tiny modification of the star, the Sanders logo has not, in any real way, been turned against itself. Sanders is being called a communist, in so many words, which does mock his avowed socialism, but nothing about the Sanders logo is necessary for the gag. There is already a picture of Bernie on the shirt, and that plus any use of the name “Bernie” in any typeface would sell the message. The use of the trademark does evoke Bernie Sanders, but no more than his own name does. That is why the shirt, though plausibly a satire (i.e. a jest of Sanders’ affiliation with a movement often viewed negatively in a democratic country) is not really a parody of anything.
1) The logo itself is not being parodied.
2) The trademark is not being used to comment on the mark’s owner.
3) The use of the logo is not beneficial to the humor or the political content of the shirt.
Second, your blog post and particularly your chat incorrectly suggest that you need “permission” from a trademark owner to do a parody using its logo. That is a foolish suggestion: parody is protected both by the fair use defense to the Lanham Act and by the First Amendment; indeed, when a parody is plainly a parody, it does not create an actionable likelihood of confusion (if the mark is “famous,” then dilution considerations come into play and the analysis is a bit different).
I am well aware, of course, that one does not seek “permission” for parody. My conversation with Liberty Maniacs owner Dan McCall was simply to suss out whether he considered the explicit and unaltered use of his own company logo on an unflattering T-shirt to be parody or infringement. My conversation, if anything, made plain MY view: that it would be infringement–at least in this context–and that I thought I should get his permission before I pulled what he pulled with the Sanders logo. If McCall said that he didn’t mind, then at least he would be consistent.
(FYI: after sending the mock-up to McCall, he has offered me no opinion on whether he thinks it is parody, and certainly no permission to play with his logo even if he thinks it is not.)
In fact, although your reproduction of the “chat” you conducted with Dan McCall elides this part of the conversation, McCall told you exactly that. I was a bit suspicious and so I asked both you and McCall about that. When we spoke on the phone, you equivocated but ultimately denied having been told by McCall that you did not need permission. However, McCall has supplied me with an unexpurgated version of the chat, and at the location where your image of the chat says “a bit of the chat got lost when my computer crashed,” he told you that, if what you were doing was a parody, you didn’t need his permission. Certainly that was a convenient “computer crash.” But I do not appreciate the fact that you lied to me when we spoke.
Let me tell you something, people: if you ever find yourself running an online store that sells cheap merchandise entirely dependent on parasitizing pop culture, Paul Levy is the kind of prick you want on your side when the owners of the intellectual property you’ve pirated come kicking in your door. (I’m already saving up for his retainer!)
I did speak to Paul on the phone, and suffice it to say I have never had anyone so aggressively try to buffalo me, and I’m from Buffalo. But when I finally did make Paul stick a sock in it long enough for me to get a word in edgewise, he immediately hung up on me like a common pussy.
Finally, you have asked me a number of times to tell me whether “my client” objects to your what you characterize as a “hilarious parody.” I have tried to explain to you that I am not McCall’s general counsel. I have represented him a few times to defend some of his parodies. I have never represented me in affirmative enforcement of HIS intellectual property. And he has not asked me for help in addressing your design,; thus I have no occasion to address whether you have done a parody.
In fact, to my knowledge, McCall has done nothing to stop you. Whether that is because he thinks what you are doing is a protected parody, or whether it is because he thinks you are making a play for attention by trying to bait him into objecting so that you can make a stink about it, you would have to ask him.
Far be it from me to make a play for attention, since I could never hope to top the skills of Paul’s client, who has used the occasion of the cease and desist order he received from the Sanders campaign to blast the world with cries of injustice that would make a Syrian refugee weep. I would never hesitate to defend those products of McCall’s that featured the craft or wit necessary to rise to the level of honest parody. It’s an easy bar to reach, but one that I am not convinced Dan has cleared.
Yesterday I came across this article from the Daily Beast written by Tim Mak, a “senior correspondent” for that organization (I believe this only means that he combs news sites and writes about what other reporters have dug up, like a common blogger). The nub of his story was that Bernie Sanders’ lawyers have asked a T-shirt company, Liberty Maniacs, to stop using the Sanders campaign logo in a T-shirt that the company is selling online. Here’s their artwork, and below it the official Sanders campaign logo:
The T-shirt isn’t that funny, but whatever. It’s nothing a presidential campaign should lose sleep over. But what struck me was how pissy the Daily Beast’s article was, making Sanders out as some kind of trademark troll without a sense of humor. Several times in Mak’s piece the Sanders campaign is referred to as a “bully” using “high-priced lawyers” to intimidate a small business. Isn’t comrade Sanders supposed to be above these things?
As a guy who knows a thing or two about parody and trademark, the fact is that lawyers don’t give a rat’s ass about jokes at the expense of their clients. But if you are going to call their client (who is running for president) a totalitarian dictator, in so many words, you had at least better make an effort to alter the logo that the commie in question is using to sell himself. Liberty Maniacs didn’t really make that effort. In contrast, another, funnier shirt they are selling is an actual parody of the Sanders logo, and one that has not earned them a cease and desist letter.
Like the wise capitalist peegs they are, Liberty Maniacs is using the press to hype their contested shirts and hopefully make a killing. This got me thinking: as long as liberating someone else’s trademark is all in good fun, would Liberty Maniacs libertarians be willing to be the butt of the same joke?
With a self-tighteous boner as hard as steel, I contacted Liberty Maniacs and spoke to a representative named “Dan” through their live chat service. Here is our conversation:
I then sent them a picture of the T-shirt I am now itching to produce, along with my assurance that if they consider this to be some sort of trademark infringement and not rib-tickling parody, I will not print any of them up.
Columbus, Ohio… the final frontier! It is there that I attended the Small Press and Alternative Comic Expo, colloquially known as “SPACE” (though I prefer “SmPrAlCoEx”. I wish just once someone would consult me before naming their comic show).
The show was lousy with indy comic creators whose work will never be transformed into a highly anticipated Hollywood flop like Dawn of Justice. There were also precious few cosplayers, and thus I left the show only moderately bruised. However, what SPACE lacked in goofy costumes it more than made up for in ME!
SPACE was great, and I recommend it for anyone except, once again, cosplayers, who will stick out like a Thor thumb.
Conservatives Lament Not Liquidating the White Race
Last week was blistering for the Republicans. The withdrawal of Marco Rubio from the race for President means that the contest is now between a man whose face could curdle milk, a bowl of soggy Cheerios…and Him. The true horror of Trump is finally sinking in.
Actually, “sinking in” is too generous a term. Trump is now like Wilfred Brimley in The Thing, shoving his fingers through the soft tissue of the Republican Party’s face, making their flesh one with his.
This passing of the era of dignified politics has led to numerous finger-pointing dispatches from the Establishment, a sub-genus of the Republican party that didn’t even know it had a name until the Trump campaign turned its habitat into a brownfield.
For David Brooks, the Week the Music Died arrived with this revelation: there are economic classes apart from the one he inhabits! And guess what? They vote! David has promised to investigate this phenomenon further in the years to come, and will report on his findings in his upcoming book Bobos of the Apocalypse, which will be completed just before he is strapped to the hood of an armored Crown Victoria and driven across the desert at 80 miles per hour.
Politically ever-so incorrect conservative Ben Shapiro is now a #NeverTrump after parting ways with the hack news site Breitbart.com, for whom he has served as a writer and editor. Ben laments that the website—the creation of the late, fumigating Andrew Breitbart—has abandoned its mission of declaring anyone with a camera phone and a hatred for feminist theory majors a ”journalist”, and has instead become Donald Trump’s official fluffer. Breitbart’s response to Ben’s resignation? A Trump-worthy defamation.
Meanwhile, Right wing goblin Ben Stein is prepared to blame any future Trump triumphs on blacks (as he is prepared to do for almost any catastrophe short of an outright sharknado). Ben declares himself “terrified” of Trump, all the more so because, as he puts it, every Black Lives Matter protester who shows up at a Trump event puts a thousand more white bigots into Trump’s column. Still, Ben vows to continue to support his party against Hillary, who he still finds more frightening than Trump, a man who has boasted that he can simply order China to assassinate Kim Jong Un (perhaps by threatening to waterboard Bei Bei the panda).
Meanwhile, Trump gleefully grinds his boot into the face of any Beltway Menshevik who still defies him, George Will and Charles Krauthammer being favorite targets. And in the wake of the most recent primary results, Krauthammer, who blew the call repeatedly during the rise of Trump, has conceded the man’s dangerous unpredictability. Poor Chuck. A lifelong Reaganite, he can’t even sit by the old man’s grave to speak to him anymore, as Ronald Reagan’s spinning corpse has reportedly bored its way down to the kingdom of the Mole Men.
But the “Golden Load in the Pants” trophy for last week’s biggest shit fit clearly belongs to Kevin D. Williamson of National Review, who blasted the traitorous scum of conservatism as though he were imbued with Cyclops’ eye lasers. It’s truly must-read stuff.
In sticking it to the ersatz conservatives of the fruiting Trump movement, Williamson shows just how interchangeable the right’s enemies can be. For example, conservatives often accuse liberals of needing the tender grip of some Stalinist state to complete them, but Kevin finds that The Donald fits the bill for Republicans just as nicely as Uncle Joe does for Democrats.
It is easy to imagine a generation of young men being raised without fathers and looking out the window like a kid in an after-school special, waiting for Daddy to come home.
Many of them slip into harmless Clark Griswold–ism, trying to provide for their own children the ideal families they themselves never had. But some of them end up grown men still staring out that window, waiting for the father-führer figure they have spent their lives imagining, the protector and vindicator who will protect them, provide for them, and set things in order.
This vainglorious delusion about what makes a blue collar American tick is exactly the tone-deafness that David Brooks only just caught on to. Matt Taibbi diagnosed the same malady in a recent Rolling Stone piece.
What these tweedy Buckleyites at places like the Review don’t get is that most people don’t give a damn about “conservative principles.” Yes, millions of people responded to that rhetoric for years. But that wasn’t because of the principle itself, but because it was always coupled with the more effective politics of resentment: Big-government liberals are to blame for your problems…But the fact that lots of voters hated the Clintons, Sean Penn, the Dixie Chicks and whomever else, did not, ever, mean that they believed in the principle of Detroit carmakers being able to costlessly move American jobs overseas by the thousands.
This insight will continue to lay beyond the grasp of many conservatives. It certainly eludes Kevin, who goes on to rip the lungs out of working class whites in a spittle-flecked rant worthy of the one Hitler delivered in Downfall:
The problem isn’t that Americans cannot sustain families, but that they do not wish to…The white middle class may like the idea of Trump as a giant pulsing humanoid middle finger held up in the face of the Cathedral, they may sing hymns to Trump the destroyer and whisper darkly about “globalists” and — odious, stupid term — “the Establishment,” but nobody did this to them. They failed themselves…the economic changes of the past few decades do very little to explain the dysfunction and negligence — and the incomprehensible malice — of poor white America….The truth about these dysfunctional, downscale communities is that they deserve to die.
By the end of Williamson’s ejaculation there are only two things left for him to do: marry Eva Braun and blow his brains out. Given his snobbery, I dearly hope he avails himself of the latter.
The collected greying temples at National Review, The American Spectator, The Weekly Standard, et al., are being rubbed raw these days as the smartest minds of the Op-Ed page try to figure out which part of their governing equation didn’t account for Trump. Perhaps, no…did we fail to correctly balance the stagnation of wages and lead in the drinking water with enough cheap flat screen TVs?
Little did they realize that one day a billionaire jack-o’-lantern would break ranks and reveal the Establishment’s dirty little secret to the Republican base: their party also, not just the “Demoncrats”, were the ones who sent the choicest grunt work over to China (or, as the pumpkin king himself says it, to “CHY-NAH!”).
For eight years the Republican party put all their chips on doing nothing but holding the nation hostage after America’s first black president arrived two centuries ahead of schedule. They are just now discovering that even white Republicans expect to escape their thirties with a job that doesn’t involve piloting a cash register.