This Post Rated E For Everyone (Except The Entertainment Software Association)

from the trademarks-and-morons-in-a-hurry dept

Fri, Nov 10th 2006 12:53am — Mike Masnick

Looks like it's time to break out my favorite "test" in a trademark dispute: the moron in a hurry test. Last month, video gamer blog Kotaku was one of a few blogs that linked to a humorous t-shirt that was for sale parodying the ESRB video game rating system. The t-shirt read: "Your Mom's Rated E for Everyone." And what happens next? The Entertainment Software Association (the folks behind the ESRB ratings) send out a cease and desist letter to Kotaku, claiming that there's a "substantial likelihood that the ESRB certification marks will face tarnishment and dilution." Now, there are a few problems here. First, Kotaku had nothing to do with the actual shirt (though, the ESA folks apparently couldn't figure that out). They were just writing about it, which is clearly perfectly legal no matter how you look at it. Kotaku home base (better known as Gawker Media) pointed out to the ESA that they were probably mistaken and that since it's news/editorial content there's nothing to bother with here. But, apparently the lawyers at the ESA don't believe in that sort of thing, and repeated their demand that Kotaku's post be taken down. Of course, even if Kotaku were selling the t-shirt, they'd have a pretty clear case for it being legal. On the copyright side, it's a parody, which is an acceptable defense for fair use. On the trademark side, we trot out the moron in a hurry, who is unlikely to ever think that a t-shirt reading "Your Mom's Rated E for Everyone" is actually endorsed by the ESRB. If anything, the ESRB just spiked the demand for this t-shirt. However, what would be really fun, is if someone now creates a video game named "Your Mom" and tries to get an ESRB rating of "E for Everyone."

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29 Comments

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So...?, 10 Nov 2006 @ 2:04am

So...?
So where can I buy the t-shirt?
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Ellidi T, 10 Nov 2006 @ 2:49am

You can buy it..
..at http://www.tshirthell.com
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Nico, 10 Nov 2006 @ 2:54am

The promotion just writes itself.
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Daniel Morritt, 10 Nov 2006 @ 3:29am

and the techdirt postal address is ... ? (just so they have a record to send your C&D order to)
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Republican Gun, 10 Nov 2006 @ 4:25am

C&D letters
C&D Letters just scare people who do not have legal representation. They are not worth the stamp that sent them. Obviously T Shirt Hell has a lot more legal representation than a dude with a blog.
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TriZz, 10 Nov 2006 @ 4:38am

Fair Use
...I'm no expert, but wouldn't satire/parody go out the window as soon as you profit from it?
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Wolfger, 10 Nov 2006 @ 4:45am

The ESRB is rated S, for Stupid.
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Anonymous Coward, 10 Nov 2006 @ 4:46am

re: Fair Use
Two words: Weird Al.
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Dosquatch, 10 Nov 2006 @ 4:50am

Re: Fair Use
...I'm no expert, but wouldn't satire/parody go out the window as soon as you profit from it?

What, the actors on SNL don't get paid? How rude! /sarcasm
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MrPaladin, 10 Nov 2006 @ 5:13am

What rating could it get...
... that would not be funny...

Your mom, Rated T for teen?
Your Mom, Rated M for mature?

I mean rating someones mom on any level just comes out funny
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Sanguine Dream, 10 Nov 2006 @ 5:33am

Re: Fair Use
I don't think it would. If that were the case then there would no skit shows (Mad TV or SNL) and Weird Al's music career would have ended in the 80's.
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nunya_bidness, 10 Nov 2006 @ 5:49am

Who's Mom
I think in order to properly present a C&D, the ESA would have to prove that the t-shirt was actually in reference to a particular mom.
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Anonymous Coward, 10 Nov 2006 @ 6:19am

However, what would be really fun, is if someone now creates a video game named "Your Mom" and tries to get an ESRB rating of "E for Everyone."

Lol! That was great.
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Matt (profile), 10 Nov 2006 @ 6:53am

So wait a minute...you can copyright ratings????
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Anonymous Coward, 10 Nov 2006 @ 7:03am

Re: Fair Use
you mean like Weird Al - no, parody for profit is still fair use.
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Ben Doom (profile), 10 Nov 2006 @ 7:12am

Re: ESRB Ratings
The ESRB is rated S, for Stupid.

I was thinking:
The ESRB is rated I for Immature

Who wants to make the shirt?
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Brian, 10 Nov 2006 @ 7:18am

Re: Re: Fair Use
Actually I believe Weird Al does get approval from all the artists that he parodies before hand. He didn't at the very beginning, but ran into some legal trouble and has been getter permission ever since.
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TriZz, 10 Nov 2006 @ 7:42am

Re: Re: Fair Use
"I don't think it would. If that were the case then there would no skit shows (Mad TV or SNL) and Weird Al's music career would have ended in the 80's."

Like Brian said, I also believe Weird Al gets permission.

And the shirt uses the ESRB logo in it's entirety, including the catchphrase of "rated E for everyone". Movies like the Scary Movie series - and the skit shows don't use the parody in it's entirety.

I should make myself clear, I don't think it's right that they are suing - but I'm not sure if this falls under the umbrella of "fair use."
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Stephen, 10 Nov 2006 @ 8:41am

Weird Al gets permission, because he's a nice guy, but he doesn't need permission. I think this came out when he did Amish Paradise.
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Jon, 10 Nov 2006 @ 9:23am

Fair Use
weird Al gets permission in some cases; when he can't, he stays away just enough that he can't be charged--and doesn't hold back on anything else. This was pointed out on one of his album covers, several years ago. It might have changed now. [It was also stated that most artists think a Weird Al parody of their works is a compliment.]
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Chris, 10 Nov 2006 @ 9:55am

Re: Re: Re: Fair Use
Weird Al gets permission, but the key bit is he doesn't HAVE to. I believe for example, the song "You're Pitiful" he had full permission from James Blunt, but Blunt's record company said no. Weird Al said, "well, it doesn't actually matter since parody is fully covered under Fair Use, but I don't want to disenfranchise anyone." or something along those lines.
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Anonymous Bum, 10 Nov 2006 @ 11:55am

Spatula City
Al Yankovic is a God!
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Tin Ear, 10 Nov 2006 @ 12:56pm

Re: Re: Re: Fair Use
TRUE! As a matter of fact, Al got in trouble for the song 'Amish Paradise' due to the fact that Coolio's producers indicated Al could produce the song and then Coolio himself made a statement that he never gave express permission. I am unaware what kind of settlement was reached in the case, but Al did apologize publicly. I believe that royalties/fees of some sort are being paid to Coolio.

In any case, it's asinine for the ESRB to go after a guy who mentions a product in a blog. Even if it were completely degrading to the rating system, mentioning the parody is still covered by freedom of speech.
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Solo, 10 Nov 2006 @ 8:59pm

TShirtHell.com is the best source for offensive tshirts and funny too. This is really good publicity.

The moron in a hurry applies to the lawyers who c&d the blog pointing to the original web site. Cluesless about the internet? A little too much red wine with the pork chops for lunch? In any case, double checking by a peer with more than one brain cell should be a good policy.

Finally, the ESRB should be rated R for retard (and that's offensive to retards) and their lawyers rated S for STFU.
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Ellidi T, 13 Nov 2006 @ 10:02am

Weird-Al has to pay royalties to Coolio then?
Then does Coolio pay royalties to Stevie Wonder?
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viccol, 17 Mar 2008 @ 11:55pm

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Come on . design your t-shirt to be unique now !!!

IF YOU COME , YOU WILL FIND THE SURPRISE .
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[ link to this | view in thread ]
Laura, 25 Jan 2013 @ 1:44am

Less offensive t shirts
I find funny but not so stupid t shirts at http://www.bluebanana.com/section.php/2663/1/funny-t-shirts
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