[Legal] Fair usage of (parody) brands?

In VALA we have a mega-corporation called Llamazon.
We're busy making the logo for it (since right now it is only referred to in the voice over), and I was hoping to get some advice on whether we could potentially get in trouble:

image

Thanks!

cc: @LexAquillia
LlamazonLogo.jpg
300 x 176 - 24K

Comments

  • I'm sure there are loads of parodies like this out there that Amazon doesn't bother pursuing... and ultimately that's the real risk, it doesn't matter whether you're legally okay if they try shut you down (because none of us could survive a protracted legal battle with Amazon whether or not we're legally in the right).

    My thinking about these things is that, if you aren't being particularly accusatory about a company or person, or revealing information that the company or person would rather have hidden, then it's unlikely their legal team will want to shut you down.

    They're additionally unlikely to want to shut you down as they'd have to sue you in South Africa (and our courts that deal with this kind of matter are backed up for 6 years or so). They might be able to stop Steam from allowing it on the Steam store, but I've never heard of Steam pulling a game for this kind of copyright infringement. So once you're on Steam the most you'd have to deal with is an angry letter from Amazon and a court date 6 years in the future (by which time you could remove the reference from the game).

    Just in terms of whether this actually qualifies as parody... Does "Llamazon" have something to say about "Amazon" ... like is it an online store? Is it especially ubiquitous or covetous of market share or in some way a reflection of Amazon the company? And is it useful in using the parody of Amazon to make whatever dystopian llama point that you're making in the game?

    Obviously, I am not a lawyer. But my experience as a game developer leads me to believe you have nothing to worry about.
    Thanked by 2francoisvn roguecode
  • If Watch Dogs 2 can parody Google with Noodle (similar logo + colours) I'm sure this would be fine.....but also not lawyer
  • Perhaps there's a way to ask permission. Perhaps :)
  • edited
    Never ask permission. They have no incentive to give you permission, and if you ask then they have it on record that they denied you (which makes their legal case much stronger, and them much more aware of what you're doing).
  • Thanks for the advice @EvanGreenwood !
    To your last question - we didn't actually start from the beginning with this company being a riff on Amazon. At some point we just realized the company in the story closely matched it, and that the comparison is pretty relevant.
  • @evangreenwood, that's quite an interesting perspective. Is there a reason or evidence why you feel that way? Just asking :)
  • edited
    @farsicon Well I could have it wrong, but I know I've discussed parody a bunch with @Lexaquillia and he never recommended we ask permission...

    It's not quite the same thing, but when we did have permission to parody content, when we were developing Expendabros, we were given far less creative freedom than when we never got permission (as when we were working with Lionsgate on Expendabros we had to get lawyers to sign off on new content, and as a result we couldn't include certain actors in the game). Ironically getting permission to parody Expendables limited us in what we could put in the game (and we would have been more free had we never received permission).
  • @evangreenwood, do you propose not asking and still doing it, or just not doing the parody at all? It seems to me that being able to do something within boundries is better than getting sued later on.
  • It is not a simple question to answer, such a parody could fall within the scope of tarnishing of well known trade marks which is not treated uniformly between countries.

    In some countries (France if I recall) parody is in itself a defence, in the USA parody falls in the generally "Fair Use" defence, in other countries parody (mere use of a similar mark for criticism or humor) is not considered trade mark infringement unless "unfair detriment" is suffered and/or "unfair advantage" is gained (SA and EU).

    As a general answer parody is permissible. Although it is unlikely that Amazon will, they could object to the parody and place you in the difficult position of either removing the parody or defending yourself at great cost, some risk and possible delays to the release of your game.

    You can reduce the risk by ensuring the name or logo does not appear on any marketing material. You can also isolate yourself from the risk by releasing the game through a new company setup for the purpose (if it all goes terrible wrong you personally and/or your game dev company would not be liable but the revenue would likely be lost and the new company liquidated)

    *The above is my opinion based on experience in SA trade mark law and LLM coursework which included UK, EU and USA trade mark law.
  • edited
    @farsicon Our approach has always been to do the parody, never ask permission, and, so far anyway, never apologize. The one time we did get permission was far more difficult than the time's we just did it (as I already stated).

    I think it's probably the best approach, though of course I'd love to hear the account of anyone who did this another way.

    In my mind, the main argument for not asking permission here though is that Amazon have no reason to give permission. There's no-one at Amazon who will think that putting their million/billion dollar brand in the hands of a South African game dev for this purpose is going to be worth their time monitoring.
    Thanked by 1roguecode
  • Basically what @AJK said. From a Copyright perspective it is transformtative and so would count as fair use (in the US at least which is realistically the only jurisdiction that matters). From a trade mark perspective there is a parody defense.

    *This doesn't constitute as formal legal advice, send me DM/email for that.
  • edited
    I'm considering using some parody in my next project, nice to hear it's not a critical issue.
    image
  • @evangreenwood, that makes sense. Thanks!
    Thanked by 1EvanGreenwood
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