The comic before this one shows Chuck opening a bag of Jolly Ranchers, which are fairly readable on the bag as being such (not to mention Chuck joking about it in the comic before that). I had mentioned in the script that maybe we shouldn’t go so far as to have the name on the bag be readable, but wires got crossed and there it was. Should we blur it out? Make it generic? If I was that afraid, why even write the joke in the first place? Most importantly, what did it say that I even have to ask these damn questions?
I mean, it’s technically illegal to use anyone else’s trademarks or intellectual property without their permission… except when it’s not. I remember companies in commercials used to be limited to comparing their product to a vaguely suggested “leading brand”, but then that changed so you could, for example, show a bottle of Tide detergent, trademarked logo and all, as long as it was for comparison purposes. And really, trademark law is supposed to apply only when there is the possibility of confusion, especially when one brand might be unfairly profiting from that confusion. As an example you could start up a company selling “Wrangler barbecue sauce”, but if you’re marketing anything to do with clothing, especially jeans, you’d be in some hot water.
Assuming anyone bothers to try and enforce it, of course. I look at a company like TeeFury and still scratch my head over its continued existence, with a business model built almost exclusively on profiting off products featuring unlicensed IP’s of popular culture. TeeFury claims they’re protected by the parody clauses of fair use, but really when you get down to it “Parody” and “Fair Use” are concepts that are still nebulous at best and subject to the whims of how much money and how many lawyers people are willing to throw at them. For all that I might hate what George Lucas did to the Star Wars franchise with the prequel movies, I’ll admit he always took a very lenient attitude towards the fandom in regards to allowing them to produce derivative works without interference. Now that Disney owns the rights, though, who knows?
Look at the average convention artist’s alley and you’ll see unlicensed fan art being sold everywhere. Etsy and Ebay, too. Enforcement of IP in the Internet Age probably seems like an unwinnable game of Whack-A-Mole to legal departments, particularly when any crackdowns tend to result in PR backlashes. Remember the whole Firefly “Jayne Hat” controversy? No? Well, you can read here if you wanna. When people first started making and selling them Joss Whedon himself was reported as more overjoyed and flattered than anything, then a few years later (and as some makers argued, after their hard work had created a demand) the official licensing deals came in and the Cease and Desists started.
How many parody (or even non-parody) Dungeons & Dragons webcomics are there out there? And yet Order of the Stick to my knowledge has never been hit with a C&D, while Rusty & Co. had to shut down for several months and work out a settlement with Wizards of the Coast that included the creator having to change the name of a character (including all previous references) from “Yuan-Tiffany” because WotC had “Yuan-Ti” trademarked. If you’ve ever read Rusty & Co. (and you should, because it’s a good comic), it’s about as clear-cut a case of parody–and for that matter affectionate parody–as you can get. Riddle me that one.
Dawn used to have a Zazzle store for her personal artwork. Then one day, she got a notice from them they’d wiped her whole site because of an infringement claim. Not suspended. Wiped. Why? Fender, the guitar manufacturer, said that this image used their trademarked style of guitar head without permission. For that sin, not just that offering but all the offerings on her Zazzle account were now gone, and while she could have remade the site from scratch without the offending artwork, can you blame her for not bothering? After all, next time she might unwittingly draw someone’s tennis shoes as looking too much like Nikes, right?
And yet Homestuck flat out uses Betty Crocker’s name and logos with no changes, as well as casting the corporation as an evil empire, and no one blinks. The company is aware of it and just shrugs and considers it fun, or perhaps even free advertising. Gunnerkrigg Court at one point featured very recognizable action figures of Spider-Man and Batman in someone’s room. I’m not sure if the Archaia’s published print version still had them, but if it did, I submit it as further evidence of how maddeningly random all this still is.
It doesn’t seem to matter how known you are, or how you’re using it, or anything else that should matter in a sane world. So we’re living a bit dangerously, except we run this site ourselves so I figure the worst that happens if we do get some C&D from the powers that be behind Jolly Rancher or Spongebob Squarepants is that we’ll have to go back and change an image or two. We have that technology, and while it would still be annoying since I sincerely doubt we’re profiting in any way off of their inclusion in our comic, it’s not a difficult fix. I don’t plan to hinge any plots around them. I’m also not going to fight against it since I don’t have a legal department like ThinkGeek does that can take the time to spar over concerns about unicorn meat slogans. And people should have something of a say on when and where their creations appear, if it’s reasonable. But it’s gotten so sensitive these days, and sometimes I just get so damn tired of watching movies and TV shows where everyone has to drink “Beer brand Beer” or is only allowed to drink, say, Schlitz. Or Duff. I know, I know, it’s not crucial to the narrative, but it does occasionally lend an air of the surreal to the proceedings.
This from a man who created “ClearStream” as a thinly disguised take-off on “Clear Channel”, right? But would calling the candy “Happy Ranchers” have had the effect I wanted? Or showing a statue of Blandy Beaks, the bubbly bird friend of SquishBill SphereShorts? Tying into an air of nostalgia doesn’t work very well if the audience doesn’t get what they’re supposed to be nostalgic about. Perhaps one day we’ll be called upon to replace them with products of our imagination instead of products of our recognition. Perhaps that day will be tomorrow; but for today, at least, we will show them as they’re meant to be.