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Soda cans, to much of the real deal or not?

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Posted (edited)

Yes, you can get in trouble for them.

 

Whether or not you will is a complicated matter. You're not directly violating any copyright there, but you are creating something that is very similar to existing trademarks, especially for the right-most two designs. You're probably thinking this falls under "fair use" as parody, and maybe it does. But you'd have to discuss with a lawyer to be sure, and remember that fair use is a defense, not a state of being. So even if ultimately a court would rule in your favor, you'll still be in court if somebody who holds the trademarks you're toeing the lines of decides they want to go after you.

 

If I were you I wouldn't bother, the risk cannot possibly be worth the potential hassle unless this parody is somehow the crux of your game (which of course would make it more likely to be a problem for the IP holders).

Edited by Josh Petrie

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Posted (edited)

IMO - I am not a lawyer - this is clearly and trivially fair use. (I would change the beer can more, though.) Problem is, as mentioned above, fair use does not in itself protect you from trouble. But I'll take a slightly softer line in that you're not likely to get on anybody's radar in the first place, or merit more than a C&D if you do. In which case, just change them then. As a strictly creative note, I'd suggest making original designs unless parodying existing drinks is specifically necessary or useful to what you're doing.

Edited by Promit

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Oke, many thanks for the honest and quick answer! I think you have a point there, it is the trademark that counts mostly. I think it would be less tricky if i use plain colours without the trademark logos and/or the designs, and only use the names in a bended way like the two designs on the left.

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When I see this question being asked, it reminds of when people ask for health advice on the internet because they don't want to see a doctor.

The best thing to do in this case is

A. See a lawyer and understand your options

or

B. Don't do it

Since i am new to all this i just wanted an experienced opinion, which i got.

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Dr. Pooper
Crappy Cola
Poopsie
HineyCan

As long as you poke fun at the product, you can use names with similar likeness to original product under fair use of parody.

Signed,
Alfred E. Neuman

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As long as you poke fun at the product, you can use names with similar likeness to original product under fair use of parody.


Maybe, maybe not. Only a judge can decide if your work qualifies as Fair Use, which means you have to go to court and admit infringement ("but it's OK, because...") and see if the judge rules in your favour.

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Posted (edited)

Even if you reproduce the labels exactly (e.g. using photographs of the real products), it technically should be legal. Trademarks don't apply because you're not using them to identify your game in the marketplace (these are hidden deep inside the game, only seen after people purchase it). Copyright is an issue, because you're directly reproducing someone else's creative work, however, the incidental depiction of a product being used for it's intended purpose should be fair use (note that this is a grey area though)... It used to be commonplace in novels/books for real world products to be mentioned in stories in order to create a realistic setting, and there's legal precedent that such use is perfectly fine.

 

The other grey area is association. If you reproduce someone else's trademarks in your game, that might lead people to believe that this other brand actually endorses/supports your game. If your game gets bad press, this could cause damage to their brand (which could be worth a billion dollars)... Often websites have blanket disclaimers like: "All company, product and service names used in this website are for identification purposes only. Use of these names, logos, and brands does not imply endorsement" (note that such a disclaimer doesn't automatically put you in the right -- you could still lose a lawsuit).

 

However, if you watch American TV, you'll notice that even though this should be fine, brand names / labels are always blurred out, even when they appear in the background. The exception to this is product placement / advertising -- if you see a beer / soda label in a TV show / movie, it's because they've paid money to have it appear there as an advertisement...

The other reason that this is done is to reduce their risk of lawsuit. You can be doing something that's perfectly fine and legal, but still get sued anyway -- it's only at the end of the lawsuit that you find out whether you're right or wrong, and getting to the end might cost a lot of money. Worse; if you lose the lawsuit, you might be ordered to pay the legal costs of the other side, which could bankrupt you... So even when a TV show doesn't need to blur a label, they will do it anyway as part of a risk management strategy.

 

So the blurring serves two purposes -- it protects their advertising income stream by making product placement special, and reduces their risk of spurious legal attacks.

 

Personally, I like to get all righteous against the ever creeping scope of IP laws that stifle fair use, so I'd say go for it and damn the man! But sensibly, it's a good risk reduction strategy to avoid this altogether... :(

Edited by Hodgman

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There are many areas of law, not just the "Big Three" in IP of copyright, trademark, and patents.

They are certainly similar enough to be identified as their intended brands, so you've got copyright, trademark, trade dress, dilution by blurring, dilution by tarnishment, unfair competition, unfair or deceptive practices, making an association with a famous mark, false designation of origin, false descriptions, and more besides.


What is the cost to change them?  Perhaps an hour of work?  $20? $50?

 

What is the cost of a lawsuit?  Even a Cease and Desist order is going to cost hundreds of dollars to make sure you resolve properly, plus they'll demand you change the logos.

 

Note how in BOTH cases you end up changing the cans.  The only difference is one situation involves lawyers.

 

You can also leave them and accept the risk. But if you start to succeed or become successful or become popular, sooner or later you'll get a knock at the door demanding you to sign for receipt of a legal document.

 

 

 

 

About the only thing that is nearly always accepted as fair use is nominative use, using the thing's name.  Saying "this is Pepsi" is not a violation because that is the name. Doing much more than that is often a costly idea.

 

 

 

If the only people who will ever see it are you and your best friends, the risk is approximately zero.   ... Except you've already gone and posted it on the Internet, which has billions of viewers and never forgets.  Oops!

 

 

 

Fair use is a local legal concept and varies by location. Even in the same location judges evaluate it differently.  It is expensive to get wrong, and easy to get right by simply not using other people's ideas and properties.

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Although you guys have a different opinion it actually sums them up, Best case scenario is that i just change them and worst case scenario is me getting a lawsuit. I'll just go for the best case scenario :)


Personally, I like to get all righteous against the ever creeping scope of IP laws that stifle fair use, so I'd say go for it and damn the man! But sensibly, it's a good risk reduction strategy to avoid this altogether... :(

100% with you here!


If the only people who will ever see it are you and your best friends, the risk is approximately zero. ... Except you've already gone and posted it on the Internet, which has billions of viewers and never forgets.
Oops!

I guess i went for Immortality here...............or a big lawsuit ;)

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I'm not sure why I am getting downvotes on my post which is factual.

Probably because it isn't (necessarily factual), as I already pointed out.

The original poster is asking for advice on what could potentially be an expensive legal issue, and what you've suggested is not necessarily correct; an attempt at parody may or may not actually qualify as Fair Use or may not be accepted as such by a judge, and further as an affirmative defence you would have to go to court first to find out, which may incur expenses even if you win.


Note that I didn't down vote your post, but I'm reasonably certain that would be why others chose to do so.

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As long as you poke fun at the product, you can use names with similar likeness to original product under fair use of parody.

I'm not sure why I am getting downvotes on my post which is factual.


No, it is wrong.  

 

Parody is an exception, that is true, but parody has a very specific meaning.  

Parody can use satire, parody can use insults, parody can use comedy, parody can use sarcasm. Parody can be truthful, fanciful, or fiction. But those things are not parody, parody uses them.

 

Courts have issued many rulings about the parody defense. Key details are that the parody MUST give a new political, farcical, ironic or similar meanings to the elements being parodied. That is, if you simply show an object it is not parody, you must actually produce a message about the thing.  

Including a brief cameo of Mario is not a parody, but showing Mario as the evil invader to Bowser's kingdom has he is doped-out on mushrooms, killing citizens of the Koopa Kingdom, and facing the full military might of the Koopa Kingdom all while the princess is trying to negotiate peace, that is a proper parody.

 

The movies by How It Should Have Ended are parody as they generally present the characters doing something that would have fit in the story but radically altered it in farcical ways. They have had to modify and re-release a few of their clips because those segments were not a parody, but they have lawyers advising them and are quick to fix issues.

 

 

This is not a parody of Pepsi or Coke or Dr Pepper or the rest.   The cans do not present any message about the brands. They do not present a political message, such as how they are a blight on society, or how they rot teeth, or something ironic or farcical like claiming they strengthen teeth and bones, or having a character talk about how they are good for you but then suddenly have the character suffer from rotten teeth.

 

What was described is not a parody.

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So on a side note this would not be a parody unless the game is about sodas.

 

Just as a primer on parodies:

 

 A parody is a work that needs the original work to be relevant. For example any of the "scary movies" or "vampires suck" type movies.  The movie wouldn't have the same point without the original works they make fun of.

Similar to a parody is a work of satire. A satire is a work that uses copyrighted work to relay another focus.  For example if some one wrote a book using the harry potter characters but made them all super communist to make a statement about capitalism or something (I'm making this up here).  The focus in this work is about capitalism and it doesn't "need" harry potter to make its point.  

 

The point being parodies are completely within the realm of fair use.  Satires are not and are infringement without the proper licenses.  The line between the two is not black and white, but this is what courts may generally follow.

 

For your cans just mix up the name, color, and style and you should be fine.  For example the cola, with the red can, and swooping letters. For example make the can blue and the letters like your yellow can's and you would be completely safe.  This would require less creative original design but should make you safe enough.

 

As mentioned you should always contact a licensed lawyer if you want actual legal advice. 

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Posted (edited)

Also,

 

Fair Use wiki excerpt:

 

Fair use is a US legal doctrine...While U.S. fair use law has been influential in some countries, some countries have drastically different fair use criteria to the U.S., and some countries do not use a fair use framework at all. Some countries have the concept of fair dealing instead of fair use, while others use different systems of limitations and exceptions to copyright.

 

Do not assume that you are in any way protected by fair use especially if you are based outside of the US as fair use may not even exist.

Edited by Stormynature

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