First, The Pumpkin King performed his first political punt. While on the campaign trail, Donald Trump once invited Caitlyn Jenner to visit any of his properties and squat in whichever bathroom she preferred, a revolutionary gesture from the party of “It’s Adam & Eve, Not Adam & Steve”. Last week, however, while appearing on Jimmy Kimmel Live, Trump reversed course slightly and declared that poo-poo and wee-wee is a state’s rights issue that should be left to local neanderthals to decide. Someone must have must told him that he’ll have to bend the knee to those Southern states after all if he wants to be the boss. This is Trump finally acting “presidential”.
So, a win for the GOP establishment. Bathroom prejudice, extinct as a national agenda item since the era of MLK, is back and ready to embarrass conservatism once again.
But last week also marked a turning point in the Democrats perception of the race as well, at least in this observer’s opinion. I do not know exactly what the triggering event was, just as no one can tell which bird is steering the flock as you watch them dip and dive through the air in choreographed fashion, but in one day both my mother and a close friend communicated their grave concern that Hillary is not going to pull off a victory in November. Perhaps owing to Hillary’s forceful declaration that there is “no way” she won’t be the Democratic nominee, the reality of Trump’s omnipresence and the Left’s collective ambivalence toward Her Nibs crashed like a wave in their minds, and the possibility of a President Trump suddenly leapt from nightmare to reality.
In the immortal words of Scooby Doo: Ruh-roh.
The entirely foreseeable mistake the Democratic party made in throwing its weight behind the unliked and unprincipled human dart board that is Hillary Clinton is now bearing its fruit. The only silver lining to hope for is that Donald, who gobbled up his competition faster than Pac-Man on meth, may tire himself out delivering crotch kicks to Hillary before July’s Democratic convention. Then she can stagger, bloody, into Philadelphia to receive her laurels.
I am actually stunned at the ferocity of Trump’s viciousness with six months still left before the election. Without even allowing for the brief hope that this campaign will be based on anything resembling a competition of ideas and leadership skills between the two parties’ nominees, Trump has come out of the gate with a blitzkrieg attack, resurrecting conspiracy theories about the death of former Hillary associate Vince Foster and blasting Hillary’s cred as a defender of women’s dignity, going so far as to call out Bill Clinton as a rapist. (Under normal circumstances, it would seem fitting for the press to demand to know why, then, Trump donated hundreds of thousands of dollars to the alleged swine for over a decade. But the media must have by now abandoned all hopes of pinning the man down on matters of credibility that would already have any other candidate flying to Russia to room with Edward Snowden.)
The Trump strategy is bound to work in the short term, as he raises subject after subject that are so toxic Hillary cannot hope to fire back lest she be forced to answer uncomfortable questions which would send her into one of her frequent coughing fits. Trump, the remorseless pig, does indeed have her number. And what exactly can she come back at him with? Scuzz is the man’s meat and drink. And trying to outshine him with her qualifications is a non-starter as well. Trump just doesn’t do policy.
Hillary’s only hope, unless Trump lifts his shirt to reveal a missing dragon scale that she can fire an arrow into, is that with so much time left before the election the population will sicken of Donald’s meanness or–dare I dream?–realize that the man is a genuine imbecile on the topics most likely to affect their lives. Then, with our heads clear, we can select either a game show host or an exemplar of Beltway cronyism to represent our American Dream.
Free Comic Book Day: apart from 4/20 and my birthday, the most important annual event in our country! This year I spent it at Level Up Entertainment in Mays Landing, New Jersey. I was wined, dined and even given a jar of cake. But as usually happens with my guest appearances, although I brought home many memories, I brought home even more bruises.
Such adventures! And if that weren’t enough, here’s an interview with me done at the Flower City Comic-Con last month! (My bit starts at 6:50.)
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.