Trademark Law and You · 3:35pm Mar 22nd, 2014
NOTE: I am not a lawyer. This is not legal advice. If you have a legal question, consult an actual lawyer. Telling a judge that a well-read dragon on the internet told you it was okay is not going to fly.
For those of you who don't know, Jan, of Jan Animation Studios, received a Cease and Desist letter for his fan-made videos a few days ago. He is most famous for making Button's Adventures and the music videos Picture Perfect Pony and Don't Mine At Night. All of them were very cute, and some of the most well-made fan videos in the fandom.
Button's mom is one of the most popular OCs in the fandom for all the wrong reasons. Poor Button.
Sweetie Belle is always adorable.
Photo Finish is such a wonderful one-off character; it is too bad she will likely never have a speaking role ever again. Though Sapphire Shores gives us all hope... and despair.
This is not a post complaining about the evils of Hasbro, who were, in fact, well within their rights in doing so. This is a post speculating about why it happened.
The most obvious is to ask Hasbro why; Jan was nice enough to actually post the C&D (Cease and Desist, basically a letter telling him to pull his videos) for everyone to see.
Okay, the FIRST thing I noticed was that they misspelled Scootaloo's name. But shh.
The first thing I noticed about this C&D letter is that it is one of the nicest ones I've ever seen; most Cease and Desist letters are basically the legal equivalent of "if you don't stop doing this we will come burn your house down, possibly with you still inside." This is remarkably polite, stating that Hasbro appreciates his enthusiasm, and regrets that they must ask him to pull down all of his videos, but that they have to do so in order to protect their IP (Intellectual Property).
Interestingly, however, they noted that he not only violated their copyrights, but also their trademarks. Specifically, they noted that they feared dilution, and cited USC 1125.
Trademarks are very different from copyrights, but are actually much easier to understand. Trademarks are actually fairly self-explanatory - they're marks of trade. Specifically, they're meant to identify a product or service as coming from a specific person, vendor, or company. Trademarks, thus, are meant as something of a mark of quality - you know who you're getting something from.
The trouble with trademarks is that they have to be rigorously enforced, or else they lose all meaning. If you fail to defend your trademarks, then they become genericized, which means that they are effectively a generic term for a product or service, and anyone can use it. The reason for this is self-evident - if a trademark is not exclusively associated with you in a specific domain, then it clearly isn't a mark of trade that belongs to you, as many people are using it and it does not uniquely identify your products or services. Examples of this includes aspirin, which was once a brand name for acetylsalicylic acid, and xerography, which was a term coined by Xerox to describe their dry photocopying technique but which now is a generic term for the process which anyone can use. This is also why Google is careful to refer to search engines, and not "Googling" - they don't want you to "Google" on Bing, as that would genericize their name. You only Google on Google.
This means that, unlike copyrights, trademarks cannot be selectively enforced - if anyone violates your trademark, for whatever reason, you MUST challenge their misuse of their mark when it comes to your attention, or else abandon it. If you were to selectively enforce your trademark, if anyone else violated it later on and you complained, they could just point towards the previous people who violated it and claim that you had clearly abandoned the mark.
Now, it is worth mentioning that there are rules about trademarks - for instance, it is perfectly legal to use trademarks to make fun of things, and it is also legal to use them in passing. For instance, if a character on a TV show casually says that they're going to McDonalds, or drink a Coke, or similar, that's okay - so long as you aren't using the trademark in more than a passing manner, for its usually intended purpose. This is especially true if you are using it in a positive or neutral manner; using it in a negative manner CAN get you in trouble as you can be claimed to be defaming them, which can lead to a very ugly lawsuit. It is, of course, perfectly legal to CRITICIZE a brand name product, but merely doing it in an offhand manner might get you sued, especially if you didn't really mean it. For instance, propagating rumors that McDonalds serves contaminated meat could very easily get you sued by McDonalds. And they have more money than you do.
More than casual use, or use for unexpected purposes, is more likely to get you in trouble. For instance, if your character eats Kelogg's Brand Corn Flakes for breakfast every single day, that might create an association in a consumer's mind between that cereal and your character, which is potentially actionable.
Worse still is if you were to use the trademark in order to promote your show - say, a character holding a can of Coca-Cola on a movie poster, or heavily featured the awesome Jaguar that a character was driving in a trailer, or even a character who religiously eats Kelogg's Brand Corn Flakes for breakfast every day, you would be much more likely to get in trouble.
The worst sin of all, though, is to use someone else's trademark in association with your product in an attempt to associate them in the mind of the consumer or mislead them into mistaking your product as being authorized or associated with another company. Even if you didn't even think about it when you did it.
And here, I think, is where Jan got himself into trouble.
This plays at the start of several of his videos. And here we see three trademarked characters (indeed, the three that they specified in all caps in their C&D order) prancing around and climbing over the name of HIS studio.
The rest then looks very, very much like the animation from the show. Indeed, a few people, in the process of complaining on Equestria Daily, even mentioned that the first time they saw bits of some of it, they had mistaken it for something actually made by Hasbro. While quite the compliment towards his talent in imitating the show's style, it also inadvertently established that even amongst the target audience, confusion was possible.
Now, I'm not saying that this is certainly the reason why they nailed him - after all, it may well be the whole "basically writing a MLP spinoff" thing - but this is not only trademark infringement, but is brazenly so. Imitating the look of the show is forgivable, potentially, but the combination of the use of the trademarked characters, especially the trademarked characters and his logo with the rest of it, gives the appearance of ownership, or at the very least association.
And seeing as sole association with your brand is the purpose of trademarks, you can imagine how that might be problematic.
If you all are to learn anything from this, it is this: never use another person's trademark in a context where it is too closely associated with your own without their permission. Don't be too angry with Hasbro; after they saw this, they had no choice, legally speaking, but to take action. And they were quite polite.
Any time you violate someone's trademark, you are essentially telling them "Please, sue me. I really like getting angry legal letters."
If you are going to spend months of your time working on something which belongs to someone else, particularly something so closely imitative of the original product, in the very same medium it is in naturally... it might be wise to ask permission first. While most of the time, you'd think companies would say no, it is worth remembering that Hasbro has said yes at least once.
And now you know.
The real tragedy is, about half of you are probably too young to get this reference.
And knowing is half the battle. Lol.
It's unfortunate, but it makes sense.
While it is amusing seeing all of the knee-jerk reaction of "rage, Hasbro is evil corporation, raaaaage" going on, it might be good to start injecting some realism and sense to people.
Thanks, TD.
i228.photobucket.com/albums/ee222/merc_the_jerk/spaceghost_zps2835e558.gif
Guys. It was a troll. Hasbro wouldn't be stupid enough to contact him like that, as compared to a more private E-Mail, there's no watermark for the corperation, plus they would at least spellcheck their stuff. You're getting put on a ruse cruse.
1946081
Which is clearly why they've pulled all their videos, and why they put this out on vocaroo, and why they confirmed it with Hasbro.
I mean, it could be a "ruse", but well, I doubt it. It seems pretty straightforward, and what other means have they of contacting someone on YouTube who doesn't post their email address anywhere obvious?
Or are you just trolling in response to the trolls who are saying it was fake?
I mean, they could fake it, but it is 100% plausible.
Now, here's a question.
So, in many fandoms there's a tradition of putting a stupid disclaimer at the beginning of fanfics, to the effect of "I don't own these characters, Hasbro does. Everything in here is Hasbro's copyright."
Now, conventional wisdom is that this is at best useless, and at worst actually harmful, because you're basically acknowledging that you know don't have permission to use the copyrights.
However, from a trademark POV, it makes a little more sense. By stating up front that you're not attempting to align yourself with the holders of the trademark, you're essentially warning audiences that they should not expect brand name quality. In that case, I'd think it would weaken a trademark claim because every effort was made to basically not claim the trademark.
Not that it matters much because there's still the copyright thing. But it's an interesting thought.
1946207
Keep in mind I'm not a lawyer, even if I'm friends with some and have studied some law, so this is not legal advice, just my personal take on things. Realistically, if this was a real issue for you, you'd probably want to consult an actual lawyer.
First off, on a site like fimfiction.net or fanfiction.net or similar places where anything there is obviously going to be assumed to be fan created, I would say that disclaimers like this are worse than pointless - it is immediately obvious to anyone who goes to the website that you are not claiming to be associated with Hasbro in any way, so any sort of warning like this can only act against you as an admission of wrongdoing. Any trademark suit being brought against you would not be brought on the basis of your attempting to pass yourself off as being associated with them directly, but either on the basis of the very existence of your story using their IP constituting dilution (unlikely, I would say, mostly because it isn't worth the bother) or unjust enrichment (basically, you using their IP as a means of promoting yourself, even though you aren't claiming it to be your own, but taking advantage of their IP in an illegal way in order to bring yourself fortune and fame), and in both of those cases, any sort of admission of wrongdoing on your part would be stupid. Far more likely would be a copyright claim, and a disclaimer definitely won't help you there.
Seeing as literally every page on FIMFiction.net says "My Little Pony: Friendship is Magic Fanfiction" on it, I doubt there is any doubt as to what is on the site anyway.
If you were posting somewhere which was not a fansite, however, things get a little murkier. Plagiarism is definitely a thing, and definitely something you don't want to have to deal with; giving credit where credit is due is generally considered to be common courtesy at the very least, so properly attributing characters to their owners is, on the one hand, an argument for behaving in a manner congruent with the professional community (which is an argument for fair use, though insufficient on its own) and an argument against you trying to "rip them off" (basically pretending like a trademark belongs to you, or is associated with you). These are both beneficial in some ways, but you are, again, admitting guilt, so if they sued you, you'd be potentially more vulnerable.
The advantage in making it obvious that you are not making any attempt to associate yourself with their trademark is that it may make them feel less threatened by whatever your work is, and feel as though they are not COMPELLED to C&D you under trademark law - depending on the company and its general attitude towards fanworks, this might indeed preserve you from a C&D, and it is worth noting that the guy who made the Cupcakes music video with "Ready to Die" got C&Ded by Hasbro, then re-posted the video with a note that it was a work of parody and it has been up ever since without any further complaint from Hasbro, so maybe that was enough for them.
I do not know if that would have helped Jan, however, because of the whole logo thing - even with a disclaimer, juxtaposing trademarked characters (or any sort of trademark, really) with your own personal logo is always dangerous if you don't have permission to do so, because it still can create an association between you and their trademark.
The reality is that unless you ignore a C&D order or are doing something you really, really shouldn't be doing (for instance, illegally selling derivative works, especially derivative works which compete with Hasbro licensed products) you are pretty unlikely to actually get sued; Hasbro doesn't really want to sue its fans, especially for doing relatively harmless things like posting videos on YouTube. Fanfiction is unlikely to get you sued by Hasbro unless you were doing something silly like selling it commercially or somehow threatening their book sales, and as such, any sort of admission of guilt on your part is meaningless as they aren't actually going to sue you if you comply with a C&D, and if you get C&Ded, you're probably going to want to pull it down anyway unless it is a clear cut example of parody or transformative use; frankly, even if it is, most people would probably want to pull it down to avoid the legal hassle, though if it is an obvious enough example of parody or transformative use (reviews and suchlike certainly fall under such) it may be worth challenging simply on the basis of them being unlikely to actually pursue you if they feel like they have a weak case. Again, given that the Cupcakes guy basically stuck on a "this is a parody of blah", and Cupcakes is up on Youtube to this very day, I can only assume that either Hasbro was happy with the solution or they realized that he had a pretty good argument for parody, and that it WAS an obvious parody, and you really don't want to bring a case to court with a stubborn defendant who is going to win as it just makes you look like an abusive bully.
So, would I post a disclaimer? Not here. But if I put a fan video up on Youtube, I would probably note that the characters belong to Hasbro because on Youtube, there is no automatic assumption that the poster doesn't own the characters in the video they're posting, Hasbro is unlikely to actually sue me, and the biggest worry I'd have would be getting C&Ded; if they come across a video and don't like that it exists, they're likely to C&D it, disclaimer or not.
That being said, it is actually inaccurate to say that everything in a fanfic belongs to Hasbro, though I think you know that and just worded it oddly. Nevertheless, I should clarify for the masses: all fanfics you write for the show belong to YOU, not to Hasbro. This is why Hasbro's writers are not allowed to read fanfiction; if they ripped off a fanfic, they could, in theory, be sued by you for ripping them off. This does not mean that you have the right to publish your fanfiction without their permission, but it does mean that they cannot just rip off Button's Adventures because Buttons Adventures ripped off MLP.
I will note that if you are doing some sort of big project, the optimal solution is to talk about it with Hasbro before you start so that you don't get C&Ded partway through and waste months of your time on something that you can never finish, or to do something with original IP; violating their trademarks, and then seeking permission after they C&D you, is not likely to go over as well. Obviously some things (pornography) they are never, ever, ever going to approve of, and other things (parody, reviews, ect.) they don't NEED to approve of, but if you were making something major and elaborate like Button's Adventures, that would be your safest bet.
Some folks will say that you don't want to do this because it brings attention down on you/if they say no, then you're knowingly doing something they don't want you to do (which makes you MUCH more likely to get into hot water legally), but honestly, if you're spending months doing something, it getting yanked due to a C&D is pretty lame, and if Hasbro says yes, or "yes but", you don't need to worry about it at all (and may even get additional attention like the Double Rainboom video did for being something that Hasbro officially okayed).
I think videos are much more likely to get you in trouble than anything else, though, simply because it matches the medium of the original production.
1946054
No, we want people to be outraged at this. Turning this kind of thing into a public-relations disaster, such that it ends up harming the brand more than it protects it, is basically the only way it's going to stop.
1946334
Here's the thing you don't understand, and apparently didn't pick up from my post, which makes me sad, because it was the entire point of my post.
If they feel this violates their trademarks (and I strongly believe that it does), they have to issue a Cease and Desist or else lose their trademark entirely.
It is, in fact, a legal obligation. Nothing can harm the brand more than them losing control of the brand entirely, which is precisely what happens if your trademark goes undefended and becomes genericized.
1946334
You want to stop Trademarks? Do you understand anything?
1946370
Well, that just means we need to get really really angry! Bring out the torches and pitchforks!
More seriously: So, if they don't C&D, then they immediately and irrevocably lose control entirely? Or does this kind of thing merely 'dilute' the brand, and only weaken it by a bit?
1946378
No, I want to stop legal departments shutting down things with C&Ds.
1946409
If we can get rid of actual thieves, plagiarists, and pirates then we might stand a chance of removing the need for these kinds of protections.
Just because someone spends some time making something you like doesn't mean they're in the right. I don't think Hasbro was at all wrong, and I don't think making generalized rage statements is even remotely productive.
Imagine if instead of Hasbro's IP, Jan Animations had made entirely original content that you liked. What if some other person, "Bob the Lazy Neckbeard" decided to rip Jan Animations off, and it was Jan Animations issuing a cease and desist? Would you rage against them for protecting their property?
1946403
From my post:
So yes, if you do not enforce your trademark, it is evidence that it is not, in fact, being used by you as a trademark anymore, and so someone could use evidence that you deliberately ignored some cases of trademark infringement in the past as evidence that you are no longer enforcing your trademark, and therefore that it ISN'T your trademark anymore. This is not a surefire thing, but it is a big mark against you, and it can easily cause you to lose a case of trademark infringement.
Note that you must also use your trademark to maintain it; if you cease to use a trademark, then it means that you have, likewise, abandoned it. Interestingly, this also means that trademarks can last indefinitely, assuming they never become generic and you never abandon them.
You are not forced to actively seek out trademark infringers under the law; this is very much necessary, because otherwise companies could easily be screwed out of their trademarks. The catch to this is twofold:
1) If you have expressed your discontent with someone who violates your trademark, and then failed to take action against them, this constitutes evidence that you have ceased to actively protect the trademark.
2) If someone gains a sufficient amount of notoriety, such that there is no reasonable way that you could NOT be aware of them, and you fail to take action against their violation of your trademark, that is likewise evidence that you are no longer enforcing your trademark.
Jan's videos had a pretty large number of views (I believe they were in the millions in some cases) and were very popular amongst the brony fandom; at this point, I would say that it is fairly safe to say that he would be considered notorious enough that it would be unreasonable for Hasbro to claim that they were unaware of him, doubly so because they spend time on YouTube getting their various episodes taken down, so it is not as if it is some obscure website of which Hasbro is unaware. So if they felt he was sufficiently notorious that they had to look at what he was doing, and saw him infringing upon their trademarks, they would be forced to act; likewise, if they had seen his videos previously, felt that they infringed upon their trademarks, and that the videos had become sufficiently well-viewed that he would now be considered notorious, they would likewise be forced to act against him because they could no longer plausibly deny that they hadn't noticed him. It also may be that they're contemplating legal action against some outside company or someone who is producing some MLP ripoff, and thus they felt that they needed to take action against him because otherwise the opposition would claim they had been ignoring him. It is even possible that there was some legal maneuvering going on elsewhere, the other side said "Look at this guy! You haven't shut him down!" and Hasbro said, "Why thank you, good sir, for pointing out this brazen trademark infringement," and sent out a C&D basically to counter the idea that they hadn't shut him down yet.
It should be noted that action doesn't have to be instant, but it does need to be reasonably prompt, and frankly, drafting and sending out a C&D isn't very hard, and in a case like this, it isn't hard to tell whether or not he would be considered to be infringing upon their trademarks, because it is very obviously an association of a trademark with another tradesman's name without the permission of the trademark holder.
It's acually their legal division that did this crap, but it looks like we also have an insider helping out with this
this is a miscommunication of the departments
They have a VP looking into this for us too
Although I fully understand that this was well within Hasbro's rights and they had no other options but to issue this C&D, I find it nonsensical to refer to Hasbro's actions as if they are some innocent child in need of coddling. They are a multi-million dollar corporation, they do not need to be protected from the likes of fan animations that fiercely.
So, instead of saying that Hasbro "had no choice" but to remove the videos in order to "protect their brand," I'd rather say that Hasbro "had no choice" but to be "complete assholes, because that's how law works."
Edit: Not referring to your blog post, just fans' responses in general.
1946491
I wouldn't call it a miscommunication; legal departments are frequently involved in stuff like this and don't bother other sections of the company with what is going on unless it is relevant to them. Legal, in the companies I worked in, mostly didn't bother the rest of the company unless it had to tell us to do something like preserve documents or produce documents or whatnot; we were not privy to the inner workings of what the legal department was doing because that wasn't our job.
Given the nature of licensing agreements, legal should be aware of every licensed project that Hasbro has, so would have little reason to bother the rest of the company.
Copyright infringement, you're allowed to ignore without hurting your ability to go after people in the future. Trademarks, though, need to be actively used and enforced and protected, and if they're not, then you're in trouble.
The VP is definitely going to contact legal; I just don't know if it is going to help at all, because if the issue is trademarks, as the letter suggests and as I believe, Hasbro really doesn't have any options other than a C&D and licensing, and while companies are generally willing to license their PATENTS to violators (in fact, that's usually how patent disputes are resolved, though not always, depending on the technology in question, as well as the ease of work-arounds), trademarks are another matter entirely and very frequently result in the company doing the violating getting smacked down because they don't want people thinking that the best way to get a license from them is violating and then asking.
1946509
Thing is, the law isn't even bad. The entire POINT of trademarks is exactly this; that is why they are CALLED trademarks, they are marks of trade, much like blacksmiths of old put their marks on the stuff they made to indicate who made it. The entire point of a trademark is that it is exclusive; if it isn't exclusive, then it isn't a trademark. And trademarks are, in fact, meant to help protect consumers from shoddy imitation products, as well as protect corporations from having shoddy imitation products passed off as their own and result in lawsuits/blame/lost income from people believing they were consuming their product.
The law is neither bad nor stupid; it is, in fact, entirely logical and rational, and it is the only reasonable way I really see to go about it. If you have a better suggestion for how to handle trademarks, you are welcome to suggest it.
People express a great deal of irrational rage at things which aren't actually bad, because they don't understand them. I would like for there to be much less irrational rage in the world.
It should also be remembered that, despite your portrayl of them as a multi-billion dollar corporation, they are made up of tens of thousands of individual employees who are people just like the rest of us, so when you say awful things about the decisions Hasbro is making, you're actually talking about the guy or team who made that decision, a guy with a wife and kids who is doing the best he can to make sure that the company continues to make money and can pay his salary.
1946526 As I said, I wholeheartedly agree with your statements in your blog post. There is no room for debate here: Hasbro did what they had to do, and for good reason.
The laws themselves are not "stupid" per se, but they must revolve around a world that is inherently "stupid." For, if there were no threat of plagiarism, these kinds of things would not need to be enforced with such ferocity. That, however, is just wishful thinking and rose colored glasses.
Anyone making fan works must steel themselves for this potential outcome, it's just a fact. I also hope everyone realizes that fan works are perfectly acceptable if made for personal use only. It is when these fan creations are made public that problems arise.
Hasbro makes MLP as a form of entertainment. Button Mash was also a form of entertainment. With the nature of the Internet nowadays, a fan made work can gain just as much if not more attention than the franchise itself, which I can personally attest to, for I never would have considered watching MLP if not for the fans.
To Hasbro, this C&D was a passing tumbleweed, not some vengeful attack on bronies, so I find it disheartening when I see people trying to band together to "oppress the tyrants" or people trying to convince them that Hasbro isn't the root of all evil.
Hasbro: "For you (bronies), the day Hasbro issued a C&D was the most important day of your lives. But for me, it was Tuesday."
If you'll read the sections of trademark law cited, both of them state that you can use a trademark to prevent someone else from engaging in commerce using the same mark. I think Hasbro would have to argue that Jan Animation was engaging in commerce. IIRC it must be competitive commerce for section a, but merely "commerce" for section c.
Most famous trademark losses ("abandonment") are trademarks that were used as nouns by the general population, like Aspirin. A trademark holder can request people to stop using their trademarks as nouns, but they can't make them stop. Just asking, though, was enough to save Xerox, Vaseline, and Kleenex from losing trademark status.
(Note: A search of the USPTO trademark DB shows that Hasbro has trademarked Sweetie Belle and Scootaloo, but not Apple Bloom (nor Applebloom). They got Applejack, Apple Spice, and Green Apple, but forgot Apple Bloom.)
The only legal ground Hasbro has is violation of copyright law, which was designed for protecting novels, not character designs. Most of the "precedent" regarding character designs is, I think, what people do in practice rather than case law. I'm not aware that Disney, or anyone else, has ever won a case in which someone used the graphic design of a character in a different story. It's common practice to act as if copyright law prevents that, but most of the legal elaboration on what makes a work transformative rather than derivative relates to plot, not character design.
Also note that they can't copyright, patent, or trademark style or "look and feel". Fonts can be copyrighted, but Hasbro doesn't own the Friendship is Magic font.
I notice they only REQUESTED that he take down the videos, hence I don't buy into their supposed power to take down his videos and take him to court.
People have the right to make fanfiction. Button Mash and Jan's other stuff were HELPING the series by making it more popular. If they start beating down fan-made stuff, the popularity will stop. And even if they take him down, there will be plenty of others coming after Jan to continue making fan series and videos.
Anyone notice they misspelled Scootaloo?
1946200
i228.photobucket.com/albums/ee222/merc_the_jerk/colephelps_zps77bd846b.jpg
I made that post before the vocaroo and blog, my bad.
1946721
Section a makes no mention of competitive commerce, though I'm not sure if it would really matter as they're both creating videos which are popular with much the same demographics.
As far as "engaging in commerce" goes, I believe providing a good or service to people is considered to be commerce, and providing his videos to a broad audience would probably be considered commerce even if he was not making money off of advertisements, which I believe he was. Advertisements are considered to be commercial speech, even though there is no exchange of goods involved there as far as the end consumer is taken into consideration.
Is Jan's Animation Studios registered as a business or corporation? That would be further evidence of being engaged in commerce.
I don't know if he could really win that argument.
As far as "copyright law was designed to protect novels" go, while it is true that it was originally designed to protect written works due to being quite old and predating the recording of sound and video, it has been updated numerous times since its inception to include all creative works, including but not limited to music, video, and visual art. The very original copyright law in England was designed to control publishers, but modern copyright law in the US is designed in order to promote the production of all sorts of artistic creative works via granting the producer/owner of a copyright considerable control over what they have produced so that they can license or sell it in exchange for remuneration; indeed, copyrights are one of the better named legal instruments, being the right to copy, much as trademarks are marks of trade.
As far as actual case law goes, one case off the top of my head which dealt with character design and copyright was Gaiman et. al. vs. McFarlane et. al., where it was concluded that all expressive elements of a copyrightable work which culminated in the existence of a character could contribute towards ownership of the end result even if no one element provided by any one author did not constitute something which was copyrightable in and of itself, which would suggest that the combination of a character with a design is indeed copyrightable, even if the character is a stock character.
I do believe that City of Heroes ended up having to change a lot of the visual designs of their hero creator due to the ability to easily reproduce characters owned by Marvel (and possibly DC as well), though I am unsure if that case relied on copyright or trademark or both, and I don't know if it ever went to trial or if City of Heroes merely settled out of court/removed the stuff to defuse the lawsuit.
Regarding transformative usage, there's actually a fair bit of case law on transformative uses of visual designs; indeed, Wikipedia loves to use the example of LHOOQ as an example of a transformative derivative work, though it relied, in part, on the context of the Mona Lisa and its idolization by a certain community, such that the defacement of the work thereof was considered to be very controversial. I am uncertain if putting a mustache and goatee on something in order to mock it originates with LHOOQ.
Regarding look and feel, it is absolutely true that they cannot copyright, patent, or trademark style or look and feel (though if it was overly similar to a famous mark (for instance, a logo which closely resembles the Starbucks logo in association with a coffee beverage named (blank)bucks has run afoul of trademark law) it could still get into trouble)... that would fall under trade dress, which is another, separate and much less well-known form of intellectual property which I have a much inferior understanding of the nuances of and am unsure of the limitations of or case law of. Trade dress, among other things, cannot cover functional aspects of design, and has various other limitations; its ability to protect My Little Pony characters would be limited, but I could see them making the argument that ponies within a certain range proportions with marks on their flanks could potentially constitute trade dress, though I am unsure to what extent that would hold up in court.
It is worth remembering that fair use is not really cut and dried as well, and the edges of it are blurry and unclear in many cases. Fighting fair use cases are often pretty tough, because it is very qualitative and often relies on subjective judgement.
1947533 I certainly wouldn't advise Jan Animations to go to court.
http://fimflamfilosophy.tumblr.com/post/80418719299/so-word-is-getting-around-that-jan-animations
The fact that a lot of Jan Animations fans honestly mistake Button Mash for an original character created by them, as opposed to a very minor background character invented by/on FiM "Hearts and Hooves Day" is a very clear example of what Jan Animations "did wrong" and what was in need of being shut down.
1950415
First off, the person who wrote that blog is confused; while it is true that you can hold a trademark implicitly in some jurisdictions (including the US), you have to actually be using it as a trademark to do so; they are not and never have used Button Mash as a trademark, and he certainly is not recognizable as such, so suing over a trademark on him would be really impossible.
Now, it is certainly possible that Hasbro desires a trademark on the character, wanting to use him more or produce a figurine for him, in which case they would need to make sure that they have sole rights to use.
Thing is, though, while it is true that Hasbro owns Button's character design, they don't own the actual character of Button Mash as used by Jan. That Button Mash is what is known as a derivative work. Jan does not have the right to use him unilaterally because his character design is owned by Hasbro, but the actual characterization, voice, and the content of said episodes constitute derivative works, which cannot be used by Hasbro without Jan's permission.
Button Mash actually puts Hasbro in a very uncomfortable position if they ever DID want to use him again because he is so strongly associated with Jan's incarnation of the character, which really screws Hasbro - IIRC those videos had millions of views.
Both copyright and trademark are involved, but the trademark issue has to do with the CMC (particularly the CMC dancing around his logo); Button Mash is not trademarked by Hasbro, and Jan cannot trademark him because he does not own the rights to the character design.
Copyright has to do with the whole thing's very existence, as it is a MLP spinoff, which Hasbro has the sole right to make/license.
1951487
You say he is confused about Button Mash, then go and say exactly what he did.
The character design is Hasbro's, and by default they have an implied trademark of him due to his appearing on an episode and being an obvious part of the cast of MLP.
Because Jan Animations has used that character and gained notoriety, that reduces Hasbro's "use value" in comparison. A lot of fans were under the impression Button was an OC, This is the effect that is supposed to be fought against in order to protect your trademark.
As you just pointed out, if Hasbro wants to make a toyline of Button Mash, or include him in a new episode, movie, or whatever, they have to deal with the fact that a lot of fans have a headcanon for the character that aligns with the Jan Animations version. Again, this is the effect of the "trademark" which at this point is stronger with Jan Animations. The fact that this situation exists is what is wrong. This is what Hasbro is supposed to fight against and ideally prevent.
Hasbro is somewhat in a bad situation because if they make a depiction that matches Jan Animations IP, they run the risk of him suing them. Which should not happen. Yet if they depict a Button Mash that differs from the Jan Animatin IP, fans of that version may not like the canon version as much. So this is a clear detriment to Hasbro for having let this situation come to be.
Issuing the C&D and letting the undesirable Jan Animations version fade from popularity is the best they can hope for, and also hope that whatever marketing opportunity they are hampered in currently becomes less hampered in the future.
As for the CMC+Logo thing: I am not saying that is wrong or irrelevant. I agree that part is also wrong. No contest there. No need to repeat it or defend it. I am just saying the actual Button Mash character itself is also problematic for Hasbro.
1951495
The post you linked to said:
This is wrong. Both are major issues - using Hasbro's trademarks to promote his own brand is a flagrant violation of trademark law, but Button Mash Adventures itself is an unauthorized spinoff of My Little Pony: Friendship is Magic, which is primarily a copyright issue.
In principle, Hasbro COULD sue Jan on the basis of "We were totally going to make a franchise based around this character and now you ruined it for us." In practice, any sort of trademark-based litigation against Button Mash would be essentially impossible on the basis of the fact that he is not in any way a trademark, and suing someone on the basis of trademark law because you MIGHT have trademarked said thing in the future will not fly well in court, especially given he showed up for all of two seconds, two years ago and if Hasbro wanted to, they could have applied for a trademark for him ages ago.
In other words, they could definitely seek reddress for the wrongs Jan did them, but it wouldn't be under the auspices of trademark law as far as Button Mash himself was concerned.
The only thing that I could consider bad about this situation other than the waste of good time from the animators of the Jan group, is the fact of all the other projects out there that have been in building are now second guesses to even attempt to continue. Reducing content of the fandom to half, if not more, and reducing the care to even to continue doing things in the fandom, at least in the animator’s standpoint.
But this of course depends on the next, which I was not sure if I understood. Having a comparable and somewhat confusing equality to the original content is for what I believed Hasbro took issue form this in the first place, but will this end up blazing anything with the content that has anything to do with it. Even with different style of animation will it still get brought down? And I don't mean, frame by frame animation, I mean different art design:
fc03.deviantart.net/fs71/f/2013/130/6/7/mlp_fim___rainbow_dash_and_fluttershy_by_nekozneko-d64s9eg.png
th03.deviantart.net/fs70/PRE/i/2013/174/f/c/mlp_fim__mane_six_wallpaper__bbbff_style__by_eruditeespeon-d6aegtl.png
It's a critical change but can they still enforce their 'ownership' over the animation if the style of it is changed from the original? Of course this is taking into account that the characters themselves remain the "same," as it is a fan made animation from the original. But yes, that's the only thing I was not yet clear within this post. And if you don't believe me to be a complete waste of your time to respond if you can.
1951817
Here's the questions you need to answer:
1) Are you using Hasbro's IP? This includes characters from the show, the world of the show, and any Hasbro trademark (names of characters, of the world, My Little Pony, Friendship Is Magic, ect.). If the answer to this is "no", then the only thing you have to worry about is potential confusion. However, virtually no fan animations actually fall into this category, so...
2) Is this a transformative use of Hasbro's IP? If it is a parody or a review, or something similar, then you're in the clear and don't need Hasbro's permission to do anything.
3) Are you doing it without Hasbro's permission?
Realistically speaking, if it isn't your own IP, and it isn't a transformative use, Hasbro CAN shut you down.
WILL they shut you down? Probably not, unless you become sufficiently prominent. Using your own art style is likely to make them be less worried about confusion as far as trademark is concerned, though it should be noted that it is still no protection - you cannot make a spinoff of Batman in your own art style, or make Harry Potter movies without the permission of JK Rowling, or similar things.
If you start ending up in newspapers, or your videos being linked to on prominent places on the internet, to the point where Hasbro cannot pretend like they didn't see you... you can be C&Ded, and run the risk of it.
So the question is, really, for you:
Is this project a sufficiently large project that a C&D killing the project would hurt more than asking for permission from Hasbro and them saying no?
Remember, Hasbro HAS given permission for at least one video in the past, but remember also that Snowdrop and Children of the Night have both gotten millions of views and haven't been pulled (though maybe they asked for permission from Hasbro as well - I have no idea).
If you're doing some very short animation, or doing a one-shot, you're less likely to be C&Ded than if you're doing a big project or pumping out lots of them. But it is no guarantee.
Changing the art style lessens the chances of confusion, which is one potential issue as far as trademark infringement is concerned... but it is not a Circle of Protection: Lawsuits, and they could still easily C&D you if you got too prominent simply for using their trademarked characters or copyrights.
Legally speaking, the correct thing to do is to ask permission from Hasbro, and any lawyer will tell you this. But Hasbro isn't wandering around hoping to shut down fan animations for shits and giggles, either.
Thanks for posting this. I hope more people read this and stop going on this "anti-Hasbro campaign" because it isn't going to go anywhere and just ends up hurting everyone in the long run.