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Nov 15 2013

Handling Criticism: Beware the Legal Option

In October 2000, American McGee’s Alice came out to a good bit of fanfare. In the dark video game, Alice Liddell has gone down the dark rabbit hole of madness after losing her family in a house fire. Using her vorpal blade and other weapons derived from Wonderland and the land behind the looking glass, she bloodily battles elements of her own psyche for control of her mind. The game was so successful that in 2003, McGee announced a sequel of sorts, to feature Dorothy Gale in her own twisted adventures in Oz.

Due to financial difficulties, the game was never made, but the announcement was enough to set off the guys at Penny Arcade, the webcomic dealing primarily with the video game industry. On April 14, 2003, they released a comic lampooning McGee’s destruction of childhood innocence. The single-panel comic presented itself as an ad for American McGee’s Strawberry Shortcake. Strawberry Shortcake’s friend Plum Pudding, now looking quite grown up in a corset and thigh-high stockings, was shown on her hands and knees, while Strawberry Shortcake sat on top of her, similarly attired, brandishing a riding crop she’d obviously been using on her friend. Custard the kitten sat in the background, now a panther with bloody jowls.

The text of the fake ad told us Strawberry Shortcake was “a sweet girl with a taste for PAIN.” We also learned “Her kitten, Custard, fed by a thousand corpses, seeks out a meal of flesh!” and “Strawberry’s naughty playmate Plum Pudding is the main course at this tea party!” Finally, we were invited to “Taste her in 2005″. Two rather toothy and demonic-looking strawberries completed the picture.

The comic was amusing and on-point, but it probably would have been forgotten by now, except for one thing.

American Greetings, primarily a greeting-card company, owns the trademarks for Strawberry Shortcake, Plum Pudding, and Custard. On April 22, they sent a cease-and-desist letter to Penny Arcade, saying, “You must immediately stop using these marks in your website, and you must immediately stop using these marks in connection with inappropriate materials. American Greetings Corporation does NOT support the use of its marks in connection with any type of inappropriate material.”

Penny Arcade removed the strip, replacing it with an image that said, “The American Greetings Corporation has asked us to remove this comic strip from our archive”, and provided the email address of the contact at American Greetings for questions. They also created a comic depicting a receptionist at American Greetings as a Nazi saluting a photo of Hitler.

Though Penny Arcade took the comic down, it didn’t disappear. Other people posted the image on sites where American Greetings would have little legal leverage, being beyond the reach of U.S. trademark law. Some bloggers took the opportunity to discuss the issues of parody and Fair Use as they applied to the image. Their analysis provided a clear reason to use the comic, reviving an spreading and image that, being nearly two weeks old, was effectively dead and forgotten in internet terms.

Penny Arcade fans and others interested in free speech issues boycotted American Greetings. A petition site gathered nearly 20,000 signatures from people pledging to boycott. The effect on the company isn’t clear, as American Greetings has been in decline since the late 1990s. However, this boycott provided another opportunity to discuss, analyze, and use the comic, spreading it further as people talked over the failure of the cease-and-desist letter as a PR move.

Meanwhile, the men behind Penny Arcade turned out to hold grudges. This has led them to serious problems of their own in handling criticism effectively, but it’s also meant continued bad publicity for American Greetings. In 2011, McGee released a sequel to Alice, and Penny Arcade released a sequel to their comic. In it, they mention Strawberry Shortcake, but they don’t link to any old discussion or the old comic, merely referring to it all as “what happened last time”. The events and the original comic are well enough known they don’t have to be explained.

Today, the image remains on Penny Arcade‘s Wikipedia page, commemorating the furor. American Greetings, in the meantime, has tried and failed to sell their Strawberry Shortcake holdings, instead being tied up in legal proceedings for four years over those rights.

Dealing with criticism by resorting to legal action is a bit like handling international relations by maintaining a nuclear arsenal. It can certainly be done. It’s been managed successfully in the past. But the risks are high.

As stated previously, power differentials make for dangerous territory in dealing with criticism. Using your greater power to make criticism disappear generally suggests that you can’t deal with the criticism directly. In a world where only a small number of people or organizations can afford legal services even when they need them, having access to legal counsel is a sign of a serious power differential.

As a consequence, people who threaten legal action in respond to criticism are often viewed the way a country would be if it threatened to bomb another country because its citizens burned the first country’s flag. Unless criticism comes with a legal threat of its own, or another threat seen to be of similar weight, countering that criticism with legal action will nearly always be seen as a drastic overreation.

This power differential applies even to understanding your legal options. A legal education, even courtesy of Google, is something very few people in the U.S. ever obtain. Something as simple as a hypothetical discussion of the legalities of a situation may be viewed as a threat. You may think you’re telling the world that you’re generous by declining to take a legal action that’s within your rights. It won’t be viewed that way, not while you’re actively facing the criticism.

All this assumes that your legal position is strong. It may not be. In general, U.S. laws favor open commentary, with free speech rights trumping intellectual property rights as long as the intellectual property is needed to effectively make the commenter’s point. Criticism falls firmly under the category of protected commentary.

The preference for free speech is reflected in U.S. defamation law as well. Opinion is protected, as are true statements, no matter how damaging. Even untrue statements may be protected under certain circumstances, if the person or organization took reasonable care in coming to the conclusion that they were true before communicating them.

This is complicated legal territory. Whatever you do, don’t invoke the idea of legal action without good legal advice. The internet still tends to believe that information should be free, and freely shared. That goes double for funny information, and there is little funnier than an inept power play. If you send someone an amateur cease-and-desist letter, expect that it–and the criticism that prompted it–will be spread far and wide.* The best case scenario is that your legalese will be mocked.

The worst case scenario is that your lack of legal merit will be dissected on Popehat, a website dedicated to undercutting the use of legal leverage to falsely deprive people of their free-speech rights. In that case, the original criticism will be be spread far and wide, you’ll gain a spot on a long list of legal bullies, and the person who criticized you will probably have their choice of free legal representation if you decide to pursue your case. Better to simply consult with a professional in the first place and save yourself the trouble.

Does all this mean you should never pursue legal remedies? Of course not. The legal profession and defamation law exist for a reason. However, you should understand that your legal action itself will probably become public and that people will not be generous in judging whether your action is justified.

When contemplating legal action, remember the intent of defamation law–to provide remedies for those who have been damaged by someone spreading lies about them. Unless the person criticizing you has the reach to damage your reputation and what they’re saying is far enough from the truth that it is hurting you for that reason, you may be better off leaving the lawyers out of it. If, as in the case of American Greetings, you’re not even the one being criticized, you have nothing to gain.

If, however, you are being injured by untrue criticism, go ahead and bring the lawyers in. Just make sure you get good ones. They’ll help you make matters better instead of worse.

*The technical term for this is the Streisand effect. It’s named after Barbra Streisand who attempted to block the spread of pictures of her house by legal injunction in 199X. The attempt made the news, and the news media helpfully disseminated the pictures far further than they’d have traveled on their own.

7 comments

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  1. 1
    Kels

    The funny thing here is that American Greetings probably didn’t care one bit about criticism of American McGee, they were obligated to protect their trademarked properties, and that sort of thing really doesn’t help their brand any more than knock-off T-shirts with the characters do. So in that sense, the Penny Arcade dudes could be thought of as in the wrong, and American Greetings would be expected to send a cease & desist on the topic.

  2. 2
    left0ver1under

    American Greetings, primarily a greeting-card company, owns the trademarks for Strawberry Shortcake, Plum Pudding, and Custard. On April 22, they sent a cease-and-desist letter to Penny Arcade

    This raises questions in my mind. I’m not asking for answers (re: AG vs. PA), and these can apply just as well to anyone who doesn’t like what others have done.

    (1) Did American Greetings politely ask Penny Arcade to withdraw it?

    (2) Did PA ignore a polite request?

    (3) Did AG choose to go nuclear when swatting a fly instead of asking politely?

    Sometimes people listen when someone says “You’ve stepped over the line.” Sometimes they don’t care about consequences until the lawyers start calling. And sometimes, not even then.

    Send lawyers, guns and money / They’ll get me out of this.
    - Warren Zevon

  3. 3
    Trebuchet

    Stuff like this is why I read Popehat. Ken White is awesome at calling out the censorious douchebags.

  4. 4
    Jenora Feuer

    One of the more famous examples of how to handle this happened almost seven years ago (January 2007). Darren Barefoot created a parody page called ‘Get a First Life’, poking fun at Second Life. Linden Labs’ response was described as a ‘proceed and permitted’ letter (as opposed to a ‘cease and desist’), where they basically said that they recognized this as parody, that they felt no reasonable person would not recognize it as parody, that they felt that under the law there was no real argument that it was not fair use, but that because there could be some argument as to whether or not the modified logo he was using would qualify as a trademark violation, they hereby gave him a nontransferable licence to use his modified version of the logo on any cafe press stuff he sold.

    http://www.darrenbarefoot.com/archives/2007/01/i-got-a-proceed-and-permitted-letter-from-linden-labs.html

    Linden Labs got a fair bit of good press at the time for that one statement.

  5. 5
    AMM

    … because there could be some argument as to whether or not the modified logo he was using would qualify as a trademark violation, they hereby gave him a nontransferable licence to use his modified version of the logo on any cafe press stuff he sold.

    There might be sound legal reasons for this approach.

    I am not an intellectual property lawyer (or a lawyer of any kind), but IIRC, a trademark can lose trademark status if the owner doesn’t aggressively (and successfully) protect it. (The classical example being “zipper”.)

    So it’s possible that their lawyers advised this approach to protect the trademark.

  6. 6
    Jenora Feuer

    I am not an intellectual property lawyer (or a lawyer of any kind), but IIRC, a trademark can lose trademark status if the owner doesn’t aggressively (and successfully) protect it. (The classical example being “zipper”.)

    And Kleenex, and Aspirin, and Thermos…

    I did at least take one course in law back in University, and you’re right in that Trademarks are completely different from Copyright as far as the whole ‘fair use’ thing goes; satire is allowable under copyright,. and allowing trademark abuse to go unpunished is a problem. A modified trademark used for commentary like this is a bit more questionable, though, as long as it’s not seen as trying to promote confusion. Heck, having the same trademark is even legal under certain circumstances, so long as the companies are in separate fields. Which is why Apple Records didn’t have a problem with Apple Computers until the latter started doing music programs.

    But that said, Linden Labs took what was probably the best combination of positive PR and legal defensibility on this, by laying out exactly what they were doing and granting an specific licence.

  7. 7
    voidhawk

    Two words for anyone wanting to take the legal route too early.

    Barbara Streissand.

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