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Thomas Dolby Notes Wapsi Square Lyric Use

Thomas Dolby described a recent Wapsi Square comic as "appropriat[ed] material" as it quotes from his She Blinded Me With Science song. It's hard to judge from Dolby's comments how seriously he meant his comment and there doesn't appear to be any follow up on his blog.

But it may be an area where independent comic creators need to learn a bit about copyright law to avoid problems. Wapsi Square creator Paul Taylor has had his characters quote song lyrics before (here and here) and I'm actually not sure offhand what the standard for this situation is so I'm not assuming Wapsi Square has done anything wrong.

But I do recall that on at least one time in the past it's been a problem. Pete Abrams decided to remove some song lyrics from a Sluggy Freelance storyline called "Fire and Rain" due to concerns over possible copyright issues.

FWIW, I've had some issues

FWIW, I've had some issues with this in Penny and Aggie, too, specifically the use of an old Bette Midler song ("From A Distance") as a tentpole for one of the stories ("Second Looks"). I wound up altering the lyrics slightly while preserving their rhythm and spirit. I'm still not sure I made the right call there, but I didn't want to put Gisele, my artist, at risk.

Most lawyers will tell you is some "fair use" of lyrics in nonfiction, but not in fiction. Aggie's a little concerned about that. But the music industry makes an awful lot from people who pay to quote its lyrics, and they aren't gonna part easily with that sweet, sweet revenue.

Dolby seems cool. Look at the comments line on his blog-- those aren't the fans of a guy who picks fights over stuff like this.

The only thing Penny Arcade's brush with American Greetings "taught us" is why comics (not just comic books) should have a legal defense fund. Its claim of trademark infringement was ludicrous-- it was clear-cut bullying and probably wouldn't have held up, even defended by the best lawyers money could buy-- but practically speaking, challenging it would mean a courtroom battle that Tycho and Gabe were not prepared to fight.

Actually...

Xaviar Xerexes's picture

B/c PA was using Straw Shortcake to parody a completely unrelated thing and not the product itself it PA probably didn't have a very good defense. That's part of the analysis in the seminal parody defense case Acuff Ross (the 2 Live Crew case).Â

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Xaviar Xerexes

Mad, Bad and Dangerous to Gnaw.

I run this place! Tip the piano player on the way out.

Not really a fair

Not really a fair comparison. Campbell v. Acuff-Rose was a copyright case; American Greetings v. Penny Arcade would have been a trademark case. In the former case there are four factors to weigh; in the latter there are eight but they all boil down to whether or not this will "create confusion in the marketplace."

Upon reflection, I do see a scenario where this may have been misunderstanding and not bullying. If they were just going after the cartoon, then copyright law would serve them better than trademark law, but that may not have been their only target.

From the language of the letter and the cartoon itself, I now suspect that AG was really attacking not the cartoon but the game that it allegedly advertised, a game with a release date two years out. No single drawing would have been a serious threat to Strawberry Shortcake's revenue potential; a video game release would be. (You and I know that PA had no intention of developing such a game, but that fact may have been lost on the humor-impaired.)

Well, um. I enjoyed American

Joey Manley's picture

Well, um. I enjoyed American McGhee's Strawberry Shortcake enough to send the link around to some friends and family the day it went up -- and one of them wrote back an outraged email about how she couldn't believe that the American toy marketplace had become so degraded that a product like this was going to be hitting the store shelves, and what would her daughter think when she saw that, etc., etc.. Genuine outrage. I had to explain to her that it was a parody of the very situation she was angry about. This was not some old conservative aunt, by the way. It was a fellow webcartoonist. So, yes, there was definitely the potential for confusion.

And it was also one of the best Penny-Arcades, ever.

Joey
www.webcomicsnation.com

Good but....

Xaviar Xerexes's picture

The best PA ever has to be the one explaining "perfectly normal people + teh internets = totally jerk-offs."

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Xaviar Xerexes

Mad, Bad and Dangerous to Gnaw.

I run this place! Tip the piano player on the way out.

The secret joke is that the

The secret joke is that the internet doesn't add anything to the equation.

<a xhref="http://www.kiwisbybeat.com" target=blank>Kiwis by beat!</a>

Hmm

Xaviar Xerexes's picture

I'll have to disagree there - American Greetings would have certainly sued on copyright violation as well as other counts (such as trademark).Â

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Xaviar Xerexes

Mad, Bad and Dangerous to Gnaw.

I run this place! Tip the piano player on the way out.

You might think so, but the

You might think so, but the documentation says otherwise. Notice it doesn't contain the word "copyright" anywhere. It speaks only of trademark.

The specific precedent I

Scarybug's picture

The specific precedent I remember Tycho mentioning as the reason he didn't want to bother fighting it was Dr. Seuss Enterprises v. Penguin Books, which dealt with copyright and trademark.

Edit: (I certainly don't want to imply that I agree with the decision, at the very least, both the P.A. and the Dr. Seuss parody combine something innocent with something violent, which could easily be considered a parody of both.)Â

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True but...

Xaviar Xerexes's picture

No I remember that - but if it had gone to litigation I would have certainly been surprised if copyright claims were not included. (Just change the facts to Strawberry Shortcake to Mickey Mouse and American Greetings to Disney and you'll see what I mean) I was actually surprised at the time that the "letter" didn't mention copyright either.

I don't know off the top if the Supreme Court has had a chance to consider parody in the context of a lanham act case (trademark) or not. (You'd think they would have!)Â

If we've got any law students reading today - maybe someone with free time can do a quick search on westlaw or nexis for us!

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Xaviar Xerexes

Mad, Bad and Dangerous to Gnaw.

I run this place! Tip the piano player on the way out.

I'm a little concerned about

Gordon McAlpin's picture

I'm a little concerned about the use of posters and film stills in Multiplex. My rationale is that it's fair use because of the commentary/criticism aspect of the strip -- no different than any other movie news site or blog that way, only it's in comics form. But some highly paid lawyer for some movie studio whose film(s) I've disparaged might be inclined to disagree. You never know.

Multiplex is a weekly webcomic revolving around the staff of the Multiplex 10 Cinemas.

Multiplex is a twice weekly humor comic about the staff of the Multiplex 10 Cinemas and the movies that play there.

That first link is a little

Scarybug's picture

That first link is a little b0rken.Â

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Fixed

Xaviar Xerexes's picture

Thanks for the catch.Â

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Xaviar Xerexes

Mad, Bad and Dangerous to Gnaw.

I run this place! Tip the piano player on the way out.

Fair Use?

Fabricari's picture

I was under the impression that referenceing 30 seconds or less of a song was considered fair-use.

(edited to remove stupidity)

Steve "Fabricari" Harrison
Fabricari,

Steve "Fabricari" Harrison

Can't rely on Fair Use

RemusShepherd's picture

The 30 second rule (called the '20 second myth' in this link) is a fallacy. More information here and here. Summation: The music industry doesn't believe that fair use exists, ever, period.

The legal system doesn't always agree. But who wants to get in a legal fight with a huge industry?

 Does anyone know of any comics that have come under this kind of legal threat?

I'd really like to know more about this. I know someone who just put about half the lyrics of a popular song in one of their recent comics. I would like to use a good 5-6 lines of a song in an upcoming page. As far as I can tell, this sets us (and Waspi Square) up for potential legal liability. It's ridiculous, but it's a real concern.

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Fair use works with parody.

Scarybug's picture

Fair use works with parody. That's why Weird Al could take music from anyone he wants without asking the label (he always asks the artist anyway)

Of course, as Penny Arcade taught us, you have to be parodying the thing you're using fairly, not using one thing to parody something else.

On the other hand, I don't think Thomas Dolby could claim the copyright on shouting out the word "SCIENCE!"

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 Well, it's the 'Miss

RemusShepherd's picture

 Well, it's the 'Miss Sakamoto, you're beautiful!' that could be the problem.

As mentioned in other posts in this thread, the Penny Arcade case was about a trademark, which is very different from copyright. Trademark scares me more than copyright does. I wanted to show a famous mouse murdering someone, but I chickened out and did it as a shadowplay. That page was making a point about the oppressiveness of intellectual property...I don't think that would have helped my case.

But back to song lyrics...I guess I should take solace in the fact that if I'm going to be sued for using them, I'll be in excellent (and numerous) company. :)

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Oh,

Scarybug's picture

That makes a lot more sense. I guess I'm not as familiar with the lyrics as I thought.

Trademark or Copyright, parody is still okay. Family Guy uses trademarked characters all the time, for instance. There's no way Disney gave them permission to show Walt Disney telling Minnie Mouse she has to pose for nude drawings if she wants to be a star.

Edit: I actually think the shadowplay was more effective than an explicit drawing would have been.Â

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