[Legal] Fair usage of (parody) brands?

roguecode

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:



Thanks!

cc: @LexAquillia

EvanGreenwood

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.

kidult

If Watch Dogs 2 can parody Google with Noodle (similar logo + colours) I'm sure this would be fine.....but also not lawyer

farsicon

Perhaps there's a way to ask permission. Perhaps :)

EvanGreenwood

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).

roguecode

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.

farsicon

@evangreenwood, that's quite an interesting perspective. Is there a reason or evidence why you feel that way? Just asking :)

EvanGreenwood

@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).

farsicon

@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.

AJK

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.

EvanGreenwood

@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.

LexAquillia

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.

critic

I'm considering using some parody in my next project, nice to hear it's not a critical issue.

farsicon

@evangreenwood, that makes sense. Thanks!

SkinnyBoy

How does south park get away with this while using real brands? I remember there was 4 episode of black friday, play station 4 vs Xbox 1...

EvanGreenwood

In America you can use real brands if the parody benefits from using the real brand. I think this is true in most other countries as well, but parody is particularly well protected in law in America.

Using real brands is considered fair use UNLESS it confuses customers in the marketplace and SO LONG as it is clearly a joke (because saying the kinds of things that South Park said about XBox are literally true would be libelous).

If you think of any standup comedy routine, it would be pretty weird if the comedian could not make jokes about Walmart or McDonalds, and instead had to change their names in order to tell jokes about them. The same goes for TV shows.

In video games there has been at least one lawsuit where the judge ruled in favour of the video game that was using real brands for the purpose of parody. As I recall it was a parody of a Netflix style channel and the parody channel used real TV show names in it's content, and that was considered fair use (so there is legal precedent in video games).

In that episode of South Park the creators of South Park were MUCH more likely to get sued for their portrayal of Bill Gates and Shuhei Yoshida (I think it was Shuhei?) than for their portrayal of the brands (because living persons have more protection legally than brands).

SkinnyBoy

Thanks @EvanGreenwood. In our game "Revenge of the Letters"... The idea came after what happened when unisa was failing to deliver to the students. As you look at the game, we used real brands, because if we didn't, the idea will not send the true message we are trying to portray and in the the game, the competitors are allied with unisa. So do you think we can get into trouble noting that I am also a unisa student? I don't know about the parody law in south africa but I have read about SAB trying to sue some t-shirt company and they failed to win the case.

roguecode

We've recently gone a bit beyond what I was discussing in the OP, and have made some movie (etc.) billboards that go in the game.
@EvanGreenwood, your post makes me feel a bit less nervous about this, thanks :)

Elyaradine

Those look like dangerous territory, if you're taking the films' actual posters and editing them, as opposed to riffing on the "idea" of them. Like, you're using Emma Watson's actual likeness, and you're not reconstructing things in your game's art direction (as opposed to reconstructing them out of paper and making occasionally clever commentary a la South Park, or creating pixel art and commenting on America-first, guns blazing, invade-other-lands-in-the-name-of-liberty attitudes). Simply putting llamas in a movie poster doesn't immediately strike me as parody (but I'm no lawyer), and doesn't feel like it significantly improves the game (to me), in the way that a custom poster for something similar like "Lilly and the Llama" would.

roguecode

The real idea of the billboards in the game is to build the story of the world, and are mostly billboards advertising llamazon. The above were just some things we did for fun - so I wouldn't be too upset if we couldn't use them.

So I guess it also brings up another question - would posting stuff like this to reddit and twitter be ok? I mean, it is similar to a company sharing pretty much any meme (which is 90% a stock image + 10% unique changes like text).