November 10, 2006 -
Get over yourself, ESA. Grow a sense of humor, ESRB.It's only a t-shirt.
If the ESA believes that a novelty shirt which lampoons the ESRB rating system somehow infringes upon their brand, they should pursue whatever legal action they deem necessary against T-shirt Hell, the company selling the parody item.
Respected video game blog Kotaku, however, isn't peddling the shirt. They simply wrote about it - as in free speech...
Why menace a video game news site for reporting the news about this shirt? Kotaku regularly dishes not only on games, but gamer culture, including its more offbeat aspects. This t-shirt certainly qualifies. That the ESA, an organization which is continually waging court battles over First Amendment rights, would take this ham-handed action is an extremely troubling development.
Apparently the website that broke the story on the offending T-shirt, Bits, Bytes, Pixels & Sprites, bowed to the ESA's pressure tactics. BBPS is a one-man blog, operating without a safety net. GP's been there, we understand perfectly. Kotaku, on the other hand, as part of the Gawker network, is in a better position to stand up to the ESA's bully tactics.
What's makes this situation even more distasteful is that the ESA's game publisher members are perfectly happy to have Kotaku mention their video game products day after day after day after day.
In fact, ESA member companies like Electronic Arts, Sony, Nintendo, Microsoft, Activision and others - who, through their sponsorship of the ESA, are ultimately responsible for this attack on free speech - certainly enjoy and benefit from publicity generated at big blog sites like Kotaku and Joystiq as well as a host of smaller ones.
Beyond that, GamePolitics finds it quite amazing that the ESA does nothing when a certain individual regularly likens its president, Doug Lowenstein, to all manner of vile historical figures. Yet the game publisher's trade group goes to the legal equivalent of Defcon 4 with Kotaku over this nonsense?
The ESA should do the right thing and back off.
UPDATE: Chris Bennett writes about the legalities of this case on the excellent Video Game Law Blog.
Comments
I think that if a game isn't actually rated, and doesn't say 'Rated by the ESRB' on the rating, retailers don't carry the game.
Okay, I'm assuming this is the "Your Mom is rated E for Everyone!" shirt over there at T-Shirt Hell? Well, that's funny. I like it.
I think I'm going to buy one now.
Sorry ESA, I have a sense of humor. I also understand the law in regard to trademark and parody (your lawyers apparently don't). So get the joke, have a laugh, apologize, and leave this only. All you're going to accomplish is the tarnishing of your image and you're going to help sell a lot of these shirts.
Remember, even when we're critical of you. Even if we make fun of you. The grassroots/passionate gaming community are your greatest allies. Don't lose sight of the challenges ahead from Government and public perception.
Is it just me or should the ESA hire some consultants to help them head off things like this?
A CENSORCRAT HAS INFILTRATED OUR RANKS!!! WHAT THE SHIT?!?!?!?!?
Question: When is parody protected from a charge of trademark infringement?
Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542
Dear ESA:
Until you start rating everyone’s moms for content suitability, there will be no confusion. Also considering the number of blogs that support your industry who are carrying this story: (http://www.kotaku.com/gaming/legal/esa-threatens-kotaku-213676.php). You may want to teach Christina L. Boone what an editorial, and a parody are. Legally you're up against a First Amendment challenge, which you should be familiar with, but apparently someone in your organization is not, and this is one you would not win. You also are creating very bad publicity for yourself, with the very people who support your industry.
I do feel sorry for who ever is checking this email, angry gamers tend to be rather vitriolic in email writing.
Sincerely
Entertainment Software Association
Just don't tell the ESRB.
http://www.eff.org/patent/wanted/patent.php?p=nintendo
Situations like this are where Hal Halpin needs to pitch in on the consumer/user side...
I just had a very unsettling thought that I wanted to share... Once the governmental legal salvos taper off, and the ESA's resources can be allocated to other things, I predict that we'll see a lot more of this kind of thing.
Once there is less of a cash outflow for legal battles, there may be a lot more to used to fight fair use, parody, and a many other legal activities - guised as copyright infringement and piracy.
In a couple of years, the ESA could very well be the next RIAA. I don't think it will be the same battles.. just the same attitude and spirit - hurting their own consumer base through shortsighted actions that don't affect the *real* criminals, just the average Joe/Jane.
That thought really leaves a bad taste in my mouth.
This seems like the beginning; and if we, collectivly as gamers, voters, and consumers, let the ESA take this inch, (illegally bullying the little guy), it won't be long before they take a mile, because the consumer let them get away with it -- and the ESA transforms into the interactive software content cartel.
Ugh. makes me sick to think about it.
Their behavior is simply inexcusable, considering they rely on the U.S. Constitution to fend off misguided politicians. By attacking an enthusiast website, it's a minor (for now) PR blunder, plain and simple.
Note-this behavior does not surprise me considering they are not "pro consumer" but "pro industry", but it is a bit disappointing.
Copyright issues
Although a parody can be considered a derivative work under United States Copyright Law, it can be protected under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. Campbell v. Acuff-Rose Music, Inc.
- Warren Lewis
Consumer responsibility is just as important as Corporate responsibility. So, be responsible consumers.
Thefremen has forseen this and stated it will be so in the ECA thread. The ECA will actually represent consumers while the ESA will always be for the industry. Therefore, when stupid video game laws stop, ESA v. Gamers starts, and the ECA comes to our aid.
ps:i noticed their is a spell checker inplace now...why do i feel like that paperclip guy is still haunting me >.>.
Indeed, despite their work to overturn video game laws, the ESA should only be considered a fair weather ally. They are the video game industry's equivalent of the MPAA or RIAA, and represent publishers (and major retailers, but since publishers more or less decide what games get on the shelves...) and their interests (e.g. extracting as much money from your pocket per game as legally possible).
The only reason that they've fought VG laws is because they could decrease the money publishers get from consumers.
the term "chicken-shit" comes to mind here the way they'll flex the legal pecks at somone they think will go running at the thought of litigation yet curl up in the corner when a politician of loudmouth miami geriatric calls them scum.
Bravo ESA if you're aiming to annoy the people who supported you initially you're doing one hell of a job.
Has Jack volunteered to represent Kotaku in court to fight the ESA yet?
Oh, and thanks for wrecking my high after the events of tuesday/wednesday.
@Sloth - no, Gmail gets through> I got what you sent...
I'm so shocked and disgusted by this. I guess it shows...
:-(
But really....grow some hair and balls already....your starting to devolve into politicians...plan out what to do in a coherent manner even if its PC it should not be as bad as this waffling in the fcking wind you are doing and letting defamers and lairs decimate the industry....
Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542
Dear ESA:
Until you start rating everyone’s moms for content suitability, there will be no confusion.[/I]
So tempted to send this as an email
Take your ritalin child, and relax.
That's right, THE ESA IS PULLING A JACK THOMPSON! There, I said it. Doug, you may now bow your head in shame and beg for forgiveness.
Not.
Question: When is parody protected from a charge of trademark infringement?
Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. "A parody must convey two simultaneous--and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused." From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542
Dear ESA:
Until you start rating everyone's moms for content suitability, there will be no confusion.
Buh bye,
Colin "Jabrwock" McInnes
I say go for it, Kotaku. Report the story once a day. Rub their noses in the fact that there's nothing they can do to stop you. Hell, I think I'm going to go buy a copy of that shirt out of spite. It didn't really appeal to me all that much since I don't really find Yo Mama jokes all that funny... but damned if I'm not getting one of these to wear now.
Only when they have nothing else to take up thier time....then they will start makeing money of court battles....
Have at it. They need to be told very loudly that the folks that buy their shit want this stopped.
Loudly, but keep it civil, which is why I won't until I eat and relax a bit. (Vacation Day!)
~~All Knowledge is Worth Having~~
This is pathetic. It's called paradoy you idiots, and legally protected. Your so concerned with your god damn image yet you never once bother going after the news media, jack thompson ,politicans, and others who defame and attack your industry endlessly, over and over and over again.
Grow up, grow a brain, or let someone who has one do it for you. Either way, this isn't gonna help your image with the masses, and will hurt your image among your primary fan base.
One misstep when the only thing they are ding right holding the retailers hands?
They have been needing direction for a long time now and this jsut shows they are going in the other direction...
It seems like the only reason that they are doing this is because this is an easy fight that they know they can win.
This is really a blow to their reputation IMHO.
Sheesh!
Hey, Dennis, does your e-mail filter out Gmail? Because I sent you some further info concerning this, erm, situation and I would hate for it to get lost in the void of the Internet.
:-P
I am gonna go print me some "ESA" toilet paper for future use because of this garbage.
SIFTR said it best already.
"Take your ritalin child, and relax."
-----
"In fact, ESA member companies like Electronic Arts, Sony, Nintendo, Microsoft, Activision and others - who, through their sponsorship of the ESA, are ultimately responsible for this attack on free speech"
I think that statement is tremendously unfair and overreaching. The big gaming companies may provide support to the ESA, but it's asinine to presume that they led the ESA to "attack" Kotaku. The ESA is its own organization and it is hardly infallible.
As a citizen of the US, I pay taxes to the government. Does that mean I must therefore support the Iraq war? Am I at fault because I'm an "enabler" even though I personally have no say in it and vehemently protest it? Am I to be blamed when the government goes off and screws it up?
The ESA is no different. The big companies pay into the ESA for protection and the notion of solidarity despite being competitors. Most of the time, the ESA does successfully defend them from attacks. Sometimes, the ESA gets carried away on stupid things like this. It does not automatically mean "OH GAWD everyone who backs the ESA must support this!"
I'm concerned that GP would stoop to such a low, knee-jerk reaction.
Whilst I have respect for the man, I don't think he cares what people think of gamers as long as they continue to buy games.
This current act is bordering on JT-ism though, and that's just a bit disconcerting.
This is sadly the mark of a mindless corperation that can not stay slim and streamline itself for the new age its a huge blind monster striking out at easy targets,once it gets a taste of cheap bood it will not back down easily look at Sony and its unfair and illicit attack on importers.
I should get my mom to make a shirt like that, with 'Freedom of Speech - Rated E for Everyone' to make all the folks at Kotaku happy. ;) I must've read that phrase at least a dozen times there.
Long and short of it: ESA, you can't win this fight. No chance in hell. Cease, desist, and kindly pull your collective head out of your ass.