I want bongo back. I want to be the one who gets bongo back. I want to be who gets a ticker-tape parade for getting bongo back. I want to be the one bought drinks and hookers at every stripcreator meet for that great day I got bong back.
But mostly I just want bongo back.
The entire bredth of my copyright knowledge was gained in the last hour from here.
From that page:
quote:
Court's are more likely to find a parody to be a fair use, that is, non-infringing or diluting, if the parody appears in a traditional medium of protected free speech, finding such use to be "noncommercial". For example, the First Circuit reversed the district court's finding of dilution against High Society magazine's 2-page feature "L.L. Beam's Back to School Sex Catalog," depicting models in sexually explicit positions, holding that the article was protected as a noncommercial, editorial or artistic parody.
It offends the Constitution . . . to invoke the anti-dilution statute as a basis for enjoining the noncommercial use of a trademark by a defendant engaged in a protected form of expression.
A protected form of expression. That's the key right there. Copyright law has always been a battle betweeen two entities: the rights of ownership, and the freedom of expression. And courts have stumbled around clumsily trying to define the balance that will throw these two entities into equilibrium with each other. Courts have overriden each other, contradicted each other, nullified and reversed each other, the whole time blindly groping for this balance.
Except in one case. In one case, the courts have been very consistent. Freedom of expression, without dilution to a trademark, and with no intent of commercial gain is ALWAYS LEGAL.
ALWAYS.
Now let's apply this specifically to stripcreator. Freedom of expression. Who's doing that? You, me, Country Joe and the Fish, and anyone else that wanders upon the site. Do we, THE ONES EXPRESSING OURSELVES, expect any financial gain from making these comics? HELL NO! It's wholly and completely about expression, not about commercial gain. This is the key!
You can say, well Brad's making money off Bongo. Well, that's flawed. First off, he's facilitating freedom of expression THAT HAS EXPRESSION AND NOT COMMERCIAL GAIN as its primary goal, and for this he's making money. By proxy then, he's protected by copyright law. But ignoring this, what is Brad's intention? Do you think he does this site to rake in the money or to let people express themselves? It's obvious to anyone that knows him and the site that he's doing it for expression.
From that site again:
quote:
L.L. Bean, Inc., 811 F.2d at 32.
In support of its conclusion that the defendant's use was noncommercial (and therefore entitled to a more heighten level of protection than would be afforded to commercial speech), the First Circuit pointed to use of the labels "parody" and "humor" in the magazine's table of contents; that the L.L. Bean mark and the article were not mentioned on the magazine's front or back cover; that the article took up only two pages of a hundred page issue; and that the defendant was not selling any of the products shown in the article.
If this isn't a direct correlative to stripcreator, I don't know what is. Think about it, the court said that the High Society article wasn't copyright infringement because it identified itself as "humor", that the article was not mentioned as a means to sell the magazine (same as stripcreator not mentioning Groening and drawing in increased traffic off his name), that the article took up only two pages of a hundred page issue (bongo is one character of hundreds here), and that High Society wasn't selling any of the products shown in the article (just as brad's made it a point to not sell any merchandise other than those featuring Three Reasons - which is public domain). I mean, by christ, that case goes directly to stripcreator.
The only two things that might negate this are parody and dilution. First off, is the bongo character being used in parody or comment on its original source. Hell no, thealiasmen says! To which I counter
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The point, if not now mind-numbingly clear, is that bongo CAN be used for parody and HAS been for parody consistently. I mean, check the dates of the above comics. They span the entire existence of stripcreator. Why? BECAUSE WHEN SOMEONE SEES BONGO, THEY THINK MATT GROENING!
This goes directly to the dilution argument -- two kinds of people come to the site. Ones who know bongo previously, and ones who don't. For the former, bongo is immediately seen as a source of parody. The latter, like me when I first came here, just see a one-eared bunny. He's fun and I use him in comics as a one-eared bunny and make him do one-eared bunny things, and lead his happy frolicky one-eared bunny life. The former is obviously not dilution of the association of bongo with Matt Groening, but the second? Is associating an unknown entity with a false creator dilution? I say no. Here's why -- whether or not stripcreator would have bongo on its site, I would only associate bongo with Matt Groening once seeing him on The Simpson's. So one of two cases - I don't know bongo and see him on The Simpson's and now I know him, OR I know bongo as stripcreator art, see him on The Simpson's and realize, oh stripcreator is using him, but Groening created him. Either way, both are dependent upon me seeing The Simpson's. Two other possibilities exist also - that I'll always know bongo as stripcreator art, which is still not illegal until stripcreator tries to profit from that misconception. And the other possibility, and the one that applies specifically to me, is that stripcreator teaches people that bongo is Groening's art. I've never seen bongo anywhere but here. Never on an episode of The Simpson's. The only way I know he's from the Simpson's is because I've read the parody comics here and heard people talk about it. So, in this case, stripcreator is actually asserting copyright law. Think about it -- if I REALLY like the bongo character on this site, and see that brad isn't using him on any merchandise, I'm heading over to The Simpson's official page and looking for bongo merchandise there. If anything, Groening benefits from stripcreator.
One last point on this - it could rightly be argued that even if using the bongo character in parody strips is legal, but in other ways is not (something I *strongly* disagree with since there's no intent of making money), that Brad's intent could just be to provide bongo as a source for parody. He's posting the bongo art so that people can parody The Simpson's, and when they do, cool. When they don't, though, he's still not liable, since his intent in posting the bongo art at a free site, was only to provide strippers the ability to parody The Simpsons.
Something to keep in mind.
quote:
Another example of the broader scope allowed trademark parody in a noncommercial context is Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Corp., 886 F.2d. 490 (2d Cir. 1989), which involved the use by the publisher of Spy Magazine of the cover design elements of Cliffs Notes for tongue-in-cheek parody called "Spy Notes." Reversing the district courts injunction based on a likelihood of confusion, the Court stated that a greater risk of confusion must be allowed for works such as parodies, in which expression, and not commercial exploitation, is the primary intent. Id. at 497.
The value of free speech was also acknowledged by the court in Mutual of Omaha, normally cited for the proposition that a disparaging parody of a company's trademark ("Mutant of Omaha") on a commercial product such as tee-shirts should be enjoined. The same court noted that the parody could be used, for example, on anti-nuclear pamphlets, a traditional means of free-speech. 836 F.2d at 403 n. 8.
Just further proof that when expression, and not commercial gain, is the primary intent, the court's nearly unanimously favor free expression over property rights.
It's your choice obviously, Brad, since you're the one who'll have to bite the bullet should anything come down. Just honestly consider it, because though I know it's murky water, I strongly believe that having the bongo art on stripcreator is in no way a copyright infringement.
