I read that parody is protected by law which is why there are X Rated films of Hollywood movies but after seeing a poster for that Winne the Pooh horror movie, why did they have to wait for the rights to go public?
I had this funny idea for a Hollywood movie about an Italian plumber who is stuck in a warehouse with a large turtle alien. Obviously a parody but would Nintendo be able to sue and get it shut down?
It’s actually the opposite- in the US, parody (using a work to comment on that work) is more protected than satire (using a work to comment on some other work or subject). See Campbell v. Acuff-Rose for the parody/satire distinction.
Good point! If OP were using the IP to poke fun at Nintendo, it would stand a much better chance of being protected by fair use. I got a little mixed up there.
Nintendo is the most litigious of any companies for protecting their trademarks. So you will get sued, regardless.
OP is probably getting sued for this post as well.
More then Disney?
How did they get away with that parody Mario Brothers movie with Bob Hopkins?
I guess that's why they changed every aspect of it.
It depends. When making a parody of Star Wars Mel Brooks talked to George Lucas and told him about Spaceballs. George Lucas said the main character (Lonestar) couldn’t look like Han Solo, no black vest. Disappointed but being the little shit that he his Mel Brooks made Lonestar look like Indiana Jones
Also part of the deal: no toys or products. The whole “moichandizing” bit is ironic in light of that context.
I believe that’s why they showed so much spaceballs merchandise in the movie but none for sale
Since its Nintendo specifically, there's a high chance of getting a cease and desist regardless. You probably could claim its a parody, but Nintendo is big enough that even if they decide to sue you and you win, you'll get hit hard.
Not just that, but if it does go to court it'll be joeshmo and whatever level of lawyer they can afford vs nintendo's legions of trained ip lawyers.
You'd need to have an airtight legal arguement to even make a dent and even with that airtight arguement, nintendo can afford to drag the case out to the point where joeshmo's bankrupted by the legal fees.
This is the right answer. Parody is absolutely protected speech under the 1st amendment (assuming you are in the US), and what you are making is obviously parody.
However, you only have the rights you can pay to defend in the US.
A close friend wrote and produced a lot of the major porn parodies (including Star Wars XXX) and even though they knew what they were doing was parody, if they got a C&D, they pulled the plug. It's not worth it to defend.
Parody is protected speech under the 1st amendment in the same sense that you won't get tossed in jail for drawing a picture of Mario and hanging it on your wall. If you want to make Star Wars porn parodies, go right ahead, no one is going to stop you, until you start distributing copies, at which point Disney might have some disagreement as to your uses of the copyrights and/or trademarks. The copyright issue you can fight under the fair use doctrine, not the 1st amendment, and on the trademark issue you can expect to open your wallet and pay because there's no defense there, especially if you name your product Star Wars XXX.
I am talking about a product that was made and released. If you are an IP lawyer, you aren't a good one. First amendment rights trump copyright in the case of parody
I would encourage you to look up the lawsuit history surrounding The Wind Done Gone.
You don't need to be an IP lawyer to know that the 1st amendment doesn't protect breaking IP law.
In the case of parody, it absolutely does. It is true that the fair use doctrine comes into play as a way of deflecting copyright infringement, but it is based upon parody protections in the first amendment.
Nothing in the 1st amendment mentions or protects parody. Fair use is from common law and predates the constitution. In the US, it is part of copyright law.
Doing a horror film is not a parody. A parody is humourous exaggeration. A horror is not
I guarantee you that the primary intent of the Pooh-based horror movie is to make people laugh.
The Pooh based horror movie is also likely based on the printed version of the story, so their lawyers probably have a list of what’s Disney original and what’s Milne original, so they don’t include anything that Disney invented. But the book is fair game, having dropped into public domain not terribly long ago, so there’s no one to sue them, regardless, unless they slap a red shirt on him.
That may be the primary result, but not the primary intent. The production company behind it has a slew of shitty movies that are just ripoffs of popular works or things in the public domain.
Yes, I'm sure Jagged Edge Productions intended Easter Bunny Massacre/Easter Killing to be an edge of your seats thrill ride of a horror movie. Not one intentional laugh... at the Easter bunny killing people.
Isn’t that the primary intent of all the rest of the Pooh based movies, cartoons, and television shows too?
Legally speaking, that's completely irrelevant. Does it comment on the original work or not?
In the case of Pooh, it is all irrelevant. The work is public domain now. Disney still owns the familiar design, iirc.
Winnie the pooh is allowed because the copyright on the initial story expired. It's that old. (95 years after publication or 70 years after author's death)
With Mario, you have several decades before you'll be able to get away with a horrendously awful movie just to make a little money off the Mario IP.
See you in 2080.
So not even a vague connection is allowed? the main character is a plumber wearing overalls and the alien looks like a turtle. That's about it.
Nintendo's lawyers will find a way.
Did they also sue the Simpsons when Super Mario and Donkey Kong appeared in Bart's fantasy, to convince him to steal a videogame?
No. That would fall under fair use.
It probably would, but Nintendo would absolutely use every tool at their disposal to prevent its release, including burying you in lawsuits you might win if you had the money to fight them.
Nintendo once bought the rights to “Super Hornio Bros I & II” a porn parody series based on Mario in order to prevent it from ever being released.
So what you're saying is there's good money to be made by porn-parodying Nintendo
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I think a big part of it is if the IP is the only marketable part of the “parody” and if it is parody at all. Is it a parody just because there’s jokes? If so, Pixar could make a Mario movie no problem.
But SNL can make a Mario sketch, because SNL isn’t called the Mario show and Mario isn’t featured in 100% of SNL promotional material. Same, Mario could appear in an episode of South Park or Family Guy, just not as a permanent replacement for Cartman
Yes but the fair use defense is for court in the US. If you get sued then a fair use for parody defense will have be used in court and it’ll be expensive probably
Dumb Starbucks
You're wildly overstating - not by a little, but by orders of magnitude - how extensive parody protection is. Porn companies have, in fact, lost lawsuits over porn parodies. If you made an entire movie featuring Winne the Pooh, there is no way, no matter how different the overall plot is from typical Winnie the Pooh stories, nor how sardonic you made it, that it would be covered by the parody exception. One element of fair use (parody, in this case) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." Making use of a character for an entire movie is not going to fly. This is parody. Your idea of a feature length film centered on copyrighted characters would only fall under parody protections if you made the Mario and Bowser characters so different from the originals that it wasn't worth making at all.
No
The horror movie isn’t satire or parody
mosesoperandi t1_j25rfax wrote
You're delving into Fair Use Doctrine. It has four factors. Purpose is one factor which is where parody comes into play. However, it's just one factor and not all forms of parody are equally compelling to the courts. Satire tends to stand a better chance than a parodic work that is primarily commercial in nature.