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MSUSpar10
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PostPosted: Mon Jul 28, 2003 8:13 am    Post subject: Seperated at birth? Reply with quote




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losttoy
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PostPosted: Mon Jul 28, 2003 10:45 am    Post subject: Reply with quote

Not to mention that the Totoro art is more than a copyright infringement. I understand if Scott wanted to draw a Totoro character on the shirt, but since it is the actual artists work ...

So Scott, what's up? I can see getting away with the candy wrappers, but why all the use of copyrighted images? Directly you are not making money from this comic, so you might feel justicified. However, it is linked to your shop page and subscription comic. This might be pushing it. I know you are like this big figure in comics that Understands almost everything and such, but is this a feeling of being invincable, or is there something more to this? I hate to see you get into trouble for this.
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Scott McCloud
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PostPosted: Mon Jul 28, 2003 3:13 pm    Post subject: Reply with quote

Though I realize that "fair use" -- the excerpting of ? works for transformative uses such as satire, collage, political statements or journalistic endevours -- has been degraded a bit over the years, I'm pretty sure it still covers what I'm doing in "Junk Bar."

Any experts on these laws out there? I'd love to hear an opinion.

On the matter of Miyazaki, I would hope it's clear that I'm not using the image in any way that would be competitive with or damaging to his works (which I have the highest respect for).

I certainly wouldn't balk if another creator's character walked into a story holding a copy of Understanding Comics under their arm, or wearing a Zot! t-shirt.
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Alexander D.
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PostPosted: Mon Jul 28, 2003 3:50 pm    Post subject: Reply with quote

Scott McCloud wrote:
I certainly wouldn't balk if another creator's character walked into a story holding a copy of Understanding Comics under their arm, or wearing a Zot! t-shirt.


I read a book the other day that had a character wearing what I initially thought was a Zot! t-shirt. On comparison, though, I found I was mistaken -- it's a different lightning bolt logo, probably The Flash. I was very disappointed.
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Rip Tanion
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PostPosted: Mon Jul 28, 2003 4:10 pm    Post subject: Is Frank really Jack Webb's fat, bald cousin? Reply with quote


OK, now add the pounds and subtract the hair =

And now some quotes from one of my favorite Dragnet episodes...

Brother William (Liam Sullivan), the Timothy Leary-like drug guru, pushes Joe too far and Joe says:
"Marajuana is the flame, heroin is the fuse, LSD is the bomb. So don't you try to equate liquor to marajuana, Mister, not with me. You may be able to sell that jazz to another pothead, but not to somebody who holds some sick kid's head while he vomits and wretches on a curbstone at 4:00 in the morning. And when his legs get enough starch into them so he can stand up and empty his pockets, you can bet he'll have a stick or two of marajuana. And you can double your money he'll turn up a sugar cube or a cap or two. So don't you con me with your mind expansion slop. I deal with kids every day. I try to clean up the mess that people like you make out of 'em. I'm the expert here, you're not."
------------------
Brother William: "I may even sell you a few [ideas!]"
Friday: "You couldn't sell me directions to the men's room!"
------------------
Brother William: "I'm not only news, my friend, I make news. Big news."
Friday: "So did Judas."
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Greg Stephens
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PostPosted: Mon Jul 28, 2003 4:42 pm    Post subject: Reply with quote

Scott McCloud wrote:
Any experts on these laws out there? I'd love to hear an opinion.


I am not an expert, of course, but from my understanding, and what I've read, "Junk Bar" seems to be within the rights of Fair Use.

It seems to me that, in general, the concept of copyright is a little at odds with the nature of humans. One of the fundamental activities that we engage in is communication- we share information. So for one person (or, more likely, corporation) to invent a concept, put the concept out there for others to see and experience, but then claim that only the originator can use the concept seems a little absurd to me.

On the other hand, there is value in the application of copyrights for a limited time which protect the right of the originator to exploit their concept while they can, but sooner or later all concepts will belong to society at large even if the copyright still exists.
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losttoy
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PostPosted: Mon Jul 28, 2003 8:51 pm    Post subject: Reply with quote

It could have also been a Mage t-shirt ... Thank goodness that Madman has a dot at the bottom or I would really be confused with all these lightning bolts out there.
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buzzard
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PostPosted: Tue Jul 29, 2003 1:03 am    Post subject: Reply with quote

Scott McCloud wrote:
Though I realize that "fair use" -- the excerpting of ? works for transformative uses such as satire, collage, political statements or journalistic endevours -- has been degraded a bit over the years, I'm pretty sure it still covers what I'm doing in "Junk Bar."

I'm no expert, but this seems pretty much identical to the Penny Arcade Strawberry Shortcake boondoggle, the upshot of which seemed to be, the fair use right to parody only extends as far as parodying the thing itself; using a trademark for other purposes is unlikely to be legit.

There's a pretty significant difference between trademark and copyright, and here I suspect the brightly colored logos you're building on are themselves trademarked (but maybe not, maybe only the text form itself is trademarked and the rest is copyrighted)? I think you'd be fine on copyright fair use (not commerical, etc.), but I'm not sure what you're doing is acceptable with a trademark.

I also doubt they'd ever bother to send a cease-and-desist letter your way since what you're doing isn't as in-your-face as what Gabe and Tycho did.
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Greg Stephens
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PostPosted: Tue Jul 29, 2003 2:17 am    Post subject: Reply with quote

buzzard wrote:

I'm no expert, but this seems pretty much identical to the Penny Arcade Strawberry Shortcake boondoggle....


Leaving the fact that "pretty much identical" is oxymoronic aside, I don't think this equates to that situation at all. Fair Use comes down to particulars of intent and interpretation. In trying to compose my reply I realize there are all sorts of semantic ways to look at this so that the P-A comic and Junk Bar can appear similar in nature but, really, who can possibly say that these situations are identical? The P-A comic was centered around the specific concept of the Strawberry Shortcake character as some sort of bondage dominatrix, including the name of the character to indicate that the comic was, indeed, about that character (alongside that of the other target, American McGee). Junk Bar is about some chocoholic guys discussing the state of modern culture while knocking back one packet of candy after another and the products are only seen, not mentioned. It's a question of a direct use of a trademark vs. an incidental one.

It was not the most encouraging thing to see Gabe and Tycho have to back down from that (even though it was the prudent thing to do, considering the potential financial risk), because they might have had a fighting chance, but I think it's obvious why they became a target because of their comic, even if they were within their rights of Fair Use and satire. Junk Bar just isn't in the same category as far as the potential offensive effect of its respective trademark use. Unless Scott's got something else up his sleeve for subsequent panels.
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PostPosted: Tue Jul 29, 2003 10:45 am    Post subject: Chocoholics Reply with quote

[some chocoholic guys discussing the state of modern culture while knocking back one packet of candy after another]

Frankie certainly seems to have a problem; he's put away 4 choccie bars and a pint of syrup in the time it's taken for Jimmy to eat one packet of M&Ms. Poor guy's even starting to look a little bit tipsy in the last panel - too much sugar? [/quote]
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PostPosted: Tue Jul 29, 2003 3:03 pm    Post subject: Reply with quote

Sadly, copyright and trademark cases sometimes are won not on merit of the law, but on whose got the better sharks - er - lawyers; and the big companies can afford the better lawyers, and more of them. However, sometimes the little guy triumphs if the law is on his side.

For the record, manuscrpits, comics, music, etc. fall under copyright law, while brand names and logos fall under trademark law (at least here in the good ol' U.S. of A.) U.S. copyrights are handled by the U.S. Copyright Office, which is run by the Library of Congress. U.S. Trademarks are handled by the U.S. Patent and Trademark Office.

Most trademark infringment cases involve either one company accusing another of using a similar brandname and/or logo on a product, to one that is trademarked (i.e., if you put out a product, and smacked PEPSI's red, white, and blue ball on it, you'd be hearing from Pepsico's lawyers faster than you could say "Van Lingle Mungo."), un-licensed use of a person or character's name and/or likeness on a product (i.e., if I put out Zot underoos, with out getting a license from Scott or whoever own the rights to said character, I could be sued), or where a company accuses someone of defaming their logo, like with Strawberry Shortcake. If Scott where to be sued by any of the candy manufacturers, it would be for the latter. However, it doesn't appear Scott is defaming the logos here, he's just showing people eating the particular products, which is what the candy companies want you to do...eat their product (as long as you paid for it, first).

However, the addition of Scooby-Doo in the latest panel might pose some problems. I'm not sure if the likenesses of cartoon character falls under copyright law, or trademark...it might fall under both. Of course, MAD magazine has been doing parodies using likenesses for years, and they rarely have been sued, and the few suits that were filed I don't believe were won by the plaintiffs. So far, I don't think Scott will be hearing from Hanna-Barbera's lawyers. But you never know.

Actually, I just did a search at the USPTO site and found 29 trademarks with the name Scooby Doo. I only checked out a few of them, but the ones I did look at pertained to licensed products with the Scooby Doo name and logo on it.

BTW, why is Frank pining over Scooby? Or does he just want a Scooby Snack?
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PostPosted: Tue Jul 29, 2003 3:10 pm    Post subject: Oooops, I dood it again. Reply with quote

I wrote the above annonymous post. I was logged in when I started writing it, but then it posted my message up as an annonymous guest, and I found myself logged out. That's the second time that's happened to me this week.

Could it be that I hit the ?PREVIEW? button one too many times? It was a long post, and I like to proofread while I'm writing, and the more I write the more I proof read. I'm a horrible typist, who has always had spelling problems to begin with.

Sorry, folks. Please bear...or is it bare...with my ineptitude.
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Rip Tanion
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PostPosted: Tue Jul 29, 2003 3:35 pm    Post subject: Who is Frank, really? Reply with quote

I sent a friend the link to Junk Bar, and he just wrote back that he thinks Frank looks like Walter Matthau.

Hmmm, let's see.

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Kathy Li
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PostPosted: Tue Jul 29, 2003 8:39 pm    Post subject: Reply with quote

So, Rip, what you were really saying is that we should all make sure our CBLDF memberships are up to date in case Scott needs 'em?
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buzzard
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PostPosted: Wed Jul 30, 2003 3:07 am    Post subject: Reply with quote

I wrote:
Quote:
I also doubt they'd ever bother to send a cease-and-desist letter your way since what you're doing isn't as in-your-face as what Gabe and Tycho did.


Greg replied:
Quote:
but I think it's obvious why they became a target because of their comic, even if they were within their rights of Fair Use and satire. Junk Bar just isn't in the same category as far as the potential offensive effect of its respective trademark use.


Well, apparently we're in agreement on this side of things.

But it's important to remember trademark law isn't the same as copyright law. For example, trademarks have to be enforced or you lose them; copyrights do not. My friend the novelist mentioned that every use of the word "dumpster" in his novel had to be changed to "Dumpster", because the word is actually a trademark; the trademark had to be acknowledged and had to be a correct usage of it. Some day the courts will recognize that "dumpster" is used casually without reference to brand and whoever it is will lose that trademark, as happened in the past with cube steaks and whatever the other famous ones are.

I don't know to what degree this level of enforcement matters if you, say, publish a photograph which happens to have a trademarked logo visible in it. But I suspect there's no legal difference between Scott's usage of the brands (or better yet, Scooby Doo) and Penny Arcade's use; just that, as we agreed above, one of them is much more likely to get the mark owner up in arms.
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PostPosted: Wed Jul 30, 2003 11:06 am    Post subject: Tarnishment Reply with quote

Actually, there is a legal difference to be drawn between Scott's use of the candy brands and PA's use of Shortcake (at least as I infer it from the descriptions here). In fact, there are a couple of differences, at least within my non-lawyer understanding of the law.

One is that Ms. Shortcake was often used as a character for use in fiction, including comics. As such, her use within a comic strip can be seen as conflicting within the same category of trademarkable material, apt to cause confusion in the marketplace. Remember, trademarks are divided into category of product, and getting the trademark for "Snickers" as a type of candy does not mean that you automatically stop someone who wants to come out with a magazine or a running shoe named Snickers.

The other is the legal concept of tarnishment; this gives special protection to famous trademarks over unfair use that may make them look bad. Turning the petite Ms. Shortcake into a dominatrix seems to fit in that category pretty well. It would be a far harder case to make for the candy brands in Junk Bar, in which candy is depicted as candy that people like to eat. About the closest you could come is some sort of accusation that candy is being depicted as junk, and that seems a far tougher case to make.

Here's a pretty good page covering some modern trademark issues:

http://www.chillingeffects.org/protest/notice.cgi?NoticeID=355
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losttoy
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PostPosted: Wed Jul 30, 2003 3:41 pm    Post subject: Reply with quote

There is an amount of flexiblity with ? & ? with editorials. However, one has to ask what is the editorial message in Junk Bar ...

In the previous mentioned case of the Barbie's, the artist was making a statement about the toy's portrayal of women and beauty (or the myth of thereof). Much like an editorial cartoon can use the Nike Swoosh in a cartoon of a sweatshop with kids.

However, Junk Bar is not an editorial to my knowledge. Of course, I have no idea what its purpose is at all. (Can anybody explain the comic to me, because I do not get it.) My comment is that it uses logos and other artist's work in a comic that draws people to Scotts site. I have a feeling that this is not legal.

Follow me here. Let us say I make a web site. On the index I put Mountain Dew all over. In fact people get to my site using searching engines with the keywords, Mountian Dew. Linked on my index is a shop page where I sell my art (although nothing to do with Mountain Dew). At this point whether directly or indirectly, I am making money with the unauthorized use of some corporation's product and ?.

While Scott may feel comfortable under "Fair Use", I doubt that he is totaly protected. It is my opinion that this one little Morning Improv is not worth the risk of a lawsuit, no matter who is "right" or not.
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NatGertler
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PostPosted: Wed Jul 30, 2003 4:05 pm    Post subject: Reply with quote

One would be hard-pressed to say that the logos are used to draw people to Scott's site; the only place I can point to the logos being mentioned beyond the site itself is in this discussion board, which is primarily for people who are already reading Scott's site. And while you may not fully grok the strip, I expect even you can see that the use of the Scooby image, for example, is in connection with ruminations about Scooby's place in our world.

Due to the vagaries of the laws and court, almost nothing is totally protected under "fair use". However, it is also highly unlikely that even an offended company would launch right into a lawsuit over this work. They are far more likely to send a cease-and-desist letter.

For some interesting insight over the line between infringing use and use protected by the First Amendment, you should actually take a look at yesterday's ruling in the Tony Twist/Todd McFarlane et al case. It's not exactly a trademark case, but it deals with some very similar concerns.
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Christopher Lundgren
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PostPosted: Wed Jul 30, 2003 11:38 pm    Post subject: Well here's what I think. Reply with quote

losttoy wrote:
...However, Junk Bar is not an editorial to my knowledge. Of course, I have no idea what its purpose is at all. (Can anybody explain the comic to me, because I do not get it.)


Oh but it is very editorial, my friend. Frank even spells it out for us. "We had RESPECT for our corporate masters in those days! They served it. We ate it. No questions asked. Now these spoiled brats want 'irony' and 'variety' and 'subtext.' " Frank remembers a simpler time when cartoon fluff like Scooby Doo ruled the scene. Frank fears diversity. He fears substance.

The choices offered to today's youth are staggering by comparison. With the state of comics and animation slowly-but-surely maturing, and with the world of manga and anime exploding into the American market (as represented by our Totoro-sporting young'n,) things must be tough for Frank. The favorites of his youth are old hat and he resents it.

Now, the candy. Surely this is just a metaphor for the same thing. It's the sweet, sugary junk that Frank loves. He serves his corporate masters all right! And the deluge of brand-name goodies reminds us of that. He gobbles it up, no questions asked, not thinking about it's nutritional value or having any sense that everything he's consuming is essentially the same. (Except the Twinkies, I guess. Those aren't chocolate, so they're a little different.) Along comes this upstart, and he dares to ask for some crazy Altoids. Altoids?! What the hell? Frank didn't have those when he was growing up, and they're a very different experience from what he knows. He's afraid of change. In his mind that makes this newcomer an enemy.

Even take away the dialogue, and the commentary could still be valid. I believe that people have become so accustomed to seeing advertising everywhere they go, that we start to tune it out. We start to forget how much of it is out there. I think the remedy is some good old fashioned satire and criticism (such as seen on The Daily Show's Ad Naseum segments) as well as having this saturation appear where people aren't accustomed to seeing it. The laws make people afraid to use real product names in their work, be it comics, TV shows, or whatever. So we're not used to seeing the real thing, and certainly not with the frequency that it all appears in daily life. So in a way, I'd say that by Scott's mere placing of so many logos in a single comic, panel after panel, he has created a satire, and an editorial statement on the nature of our world.
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yuzaa
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PostPosted: Thu Jul 31, 2003 5:31 am    Post subject: Poll on Franks appearance? Reply with quote

So, is poll a bad idea to find out how people see Frank? We've got Nixon, Walter Matthau and Jack Webb at the moment. Did I miss someone? It's quite hard to choose from just these three, but.. has anyone got more ideas for Frank's brother/cousin/etc?
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PostPosted: Thu Jul 31, 2003 7:10 am    Post subject: Reply with quote

Thanks Christopher -- very nicely expressed. I was trying to tell a friend about The Junk Bar the other day and ended up saying, just go read it -- you'll understand -- next time I find myself in that position I will have your explanation handy.
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MSUSpar10
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PostPosted: Thu Jul 31, 2003 11:05 am    Post subject: Re: Poll on Franks appearance? Reply with quote

yuzaa wrote:
So, is poll a bad idea to find out how people see Frank? We've got Nixon, Walter Matthau and Jack Webb at the moment. Did I miss someone? It's quite hard to choose from just these three, but.. has anyone got more ideas for Frank's brother/cousin/etc?


It really depends on which panel he is in. Obviously the junk food is making his face all oozy.
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PostPosted: Thu Jul 31, 2003 12:43 pm    Post subject: Re: Well here's what I think. Reply with quote

Christopher Lundgren wrote:
Oh but it is very editorial, my friend.


I would also like to thank Christopher for his cogent analysis of "Junk Bar." While I feel I already grasped much of Scott's intent, I didn't grasp as much as he did and I would have been hard pressed to express it as clearly.

I especially appreciate his insights into the significance of the use of the Totoro image. While I was delighted to see it, as I am a great fan of Hayao Miyazaki, and I realized that, as an unfamiliar (to Frank and Jimmy) cartoon character, it helped to brand the newcomer as an undesirable in the Junk Bar, I didn't explicitly make the connection to the whole world of anime and the vast amount of choice it has added and is still adding to what is available to the American animation fan.

I am still unsure whether it is significant that Frank breaks down while eating a twinkie. (Perhaps the mood enhancing effect of all that chocolate has a chance to wear off?)

And, while the fractured heart is an unquestionable symbol of sadness, misery and heartbreak, might Scott have also meant us to think of heart attack in this case, since Frank is obviously the perfect candidate for one?

William Ansley
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yuzaa
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PostPosted: Thu Jul 31, 2003 2:16 pm    Post subject: Re: Poll on Franks appearance? Reply with quote

MSUSpar10 wrote:
yuzaa wrote:
So, is poll a bad idea


It really depends on which panel he is in. Obviously the junk food is making his face all oozy.


You're right. Now that I take a closer look, Frank seems to be a man of a dozen faces, at least.. And then there were Colburn, Fred Flintstone and other fellas also mentioned. Poll for each panel.. many may like polls, but that'd be way too much.

I don't know anything about metaphor candy or such. All I see is Frank who gets really upset as he finally has a moment to look around. All Frank sees is the pile of wrappers and the pint. What a mess. And so is Frank. Then he remembers why he came to Junk Bar in the first place and breaks down. Scooby-Doo was all he had and now Scooby's gone. If that's an actual dog or just a metaphor for past times, I do not know. I'd vote the dog, though.
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