@Effervescence

I think that if a game isn't actually rated, and doesn't say 'Rated by the ESRB' on the rating, retailers don't carry the game.

It's the letter "E" in a triangle. That's a pretty poor trademark anyway.

OK so I sent this email..... thanks Jabr for the Parody link

Question: When is parody protected from a charge of trademark infringement?

Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542

Dear ESA:

Until you start rating everyone’s moms for content suitability, there will be no confusion. Also considering the number of blogs that support your industry who are carrying this story: (http://www.kotaku.com/gaming/legal/esa-threatens-kotaku-213676.php). You may want to teach Christina L. Boone what an editorial, and a parody are. Legally you're up against a First Amendment challenge, which you should be familiar with, but apparently someone in your organization is not, and this is one you would not win. You also are creating very bad publicity for yourself, with the very people who support your industry.

I do feel sorry for who ever is checking this email, angry gamers tend to be rather vitriolic in email writing.



Sincerely


Entertainment Software Association

[...] Edit: GamePolitics is calling all bloggers: “Perhaps a show of blogger unity here is needed here. Perhaps every game blog - both large and small - should make this their lead story on Monday morning - with an oversized picture of the offending shirt prominently displayed.” To Whom It May Concern: [...]

Long time reader, first time poster.

I just had a very unsettling thought that I wanted to share... Once the governmental legal salvos taper off, and the ESA's resources can be allocated to other things, I predict that we'll see a lot more of this kind of thing.

Once there is less of a cash outflow for legal battles, there may be a lot more to used to fight fair use, parody, and a many other legal activities - guised as copyright infringement and piracy.

In a couple of years, the ESA could very well be the next RIAA. I don't think it will be the same battles.. just the same attitude and spirit - hurting their own consumer base through shortsighted actions that don't affect the *real* criminals, just the average Joe/Jane.

That thought really leaves a bad taste in my mouth.

This seems like the beginning; and if we, collectivly as gamers, voters, and consumers, let the ESA take this inch, (illegally bullying the little guy), it won't be long before they take a mile, because the consumer let them get away with it -- and the ESA transforms into the interactive software content cartel.

Ugh. makes me sick to think about it.

Did I get teleported into Bizarro-world while I slept? wtf?

Ironic part is, the ESA have probably just done for this shirt what the anti-gaming crowd did for Bully and GTA, i.e. Tripled its sales.

from wikipedia article - Parody:

Copyright issues

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. Campbell v. Acuff-Rose Music, Inc.

- Warren Lewis

[...] Update: Game Politics has some more information on this issue, and notes that another video game fan site did indeed capitulate to the ESA’s demands. My guess is that Kotaku, which is part of the Gawker Media Network, has better lawyers (or lawyers of any sort at all, which most fan sites are unlikely to have). [...]

Someone give out the ESA's number so i can pass it around to 50+ friends...im sure after a few thousand calls they will retract what they said and say they are sorry.

ps:i noticed their is a spell checker inplace now...why do i feel like that paperclip guy is still haunting me >.>.

Gees i guess they were drinking the same kool aid jack was when he started barkin at midway games.

the term "chicken-shit" comes to mind here the way they'll flex the legal pecks at somone they think will go running at the thought of litigation yet curl up in the corner when a politician of loudmouth miami geriatric calls them scum.

Bravo ESA if you're aiming to annoy the people who supported you initially you're doing one hell of a job.

Damn, I guess the ESA was really serious about being just like the RIAA and MPAA weren't they?

Ok so we go after the news site talking about the T shirt and not the website makeign the T shit HOLLYFCK we found the true architects of the IRQ WAR!


But really....grow some hair and balls already....your starting to devolve into politicians...plan out what to do in a coherent manner even if its PC it should not be as bad as this waffling in the fcking wind you are doing and letting defamers and lairs decimate the industry....

[I.Question: When is parody protected from a charge of trademark infringement?

Answer: Parody is a usage of a mark that pokes fun at the mark and does not confuse the public as to the source of the usage. In determining whether there is infringement the court balances the public interest in free expression against the public interest in avoiding consumer confusion. “A parody must convey two simultaneous–and contradictory messages; that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the consumer will be confused.” From Cliffs NOtes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F. 2d 490 (2d Cir. 1989)
http://www.chillingeffects.org/protest/faq.cgi#QID542

Dear ESA:

Until you start rating everyone’s moms for content suitability, there will be no confusion.[/I]

So tempted to send this as an email

Oh, and reporting on a trademark infringement is most certainly not trademark infringement. Just like Diebold can't sucessfully sue blogs that reveal "company secrets" ie flaws in the system, the ESA has NO case against Kotaku, and is just using BULLYING tactics to get their way.

That's right, THE ESA IS PULLING A JACK THOMPSON! There, I said it. Doug, you may now bow your head in shame and beg for forgiveness.

Seriously? They're not even going after tshirthell.com, but KOTAKU for reporting on the story? What the hell!?

I say go for it, Kotaku. Report the story once a day. Rub their noses in the fact that there's nothing they can do to stop you. Hell, I think I'm going to go buy a copy of that shirt out of spite. It didn't really appeal to me all that much since I don't really find Yo Mama jokes all that funny... but damned if I'm not getting one of these to wear now.

http://www.theesa.com/contact/index.php

Have at it. They need to be told very loudly that the folks that buy their shit want this stopped.

Loudly, but keep it civil, which is why I won't until I eat and relax a bit. (Vacation Day!)

Kyouryuu
One misstep when the only thing they are ding right holding the retailers hands?
They have been needing direction for a long time now and this jsut shows they are going in the other direction...

What a letdown. I mean, if there weren't legal battle after legal battle being fought over video games' classification as free speech, I might be only peeved at this kind of news. But come on, in this day and age where hypocrisy and misleading actions are one of the biggest problems we have with our government, this is just plain not needed.

What part of "fair use" and "parody" did the esa not understand >.>,seriously i find it a outrage that they go after a random afternoon blogger and not the real threats constantly at their doorstep.

I am gonna go print me some "ESA" toilet paper for future use because of this garbage.

One goofy misstep and it's all "BURN THE WITCH"?

SIFTR said it best already.
"Take your ritalin child, and relax."

-----

"In fact, ESA member companies like Electronic Arts, Sony, Nintendo, Microsoft, Activision and others - who, through their sponsorship of the ESA, are ultimately responsible for this attack on free speech"

I think that statement is tremendously unfair and overreaching. The big gaming companies may provide support to the ESA, but it's asinine to presume that they led the ESA to "attack" Kotaku. The ESA is its own organization and it is hardly infallible.

As a citizen of the US, I pay taxes to the government. Does that mean I must therefore support the Iraq war? Am I at fault because I'm an "enabler" even though I personally have no say in it and vehemently protest it? Am I to be blamed when the government goes off and screws it up?

The ESA is no different. The big companies pay into the ESA for protection and the notion of solidarity despite being competitors. Most of the time, the ESA does successfully defend them from attacks. Sometimes, the ESA gets carried away on stupid things like this. It does not automatically mean "OH GAWD everyone who backs the ESA must support this!"

I'm concerned that GP would stoop to such a low, knee-jerk reaction.

I don't know if I'd blame Doug Lowenstein directly for this one. That said, he now has the opportunity to do the right thing by calling up the people responsible for the C&D notice and telling them to knock it off. The ESA and ESRB have plenty of image problems, but a parody T-shirt is NOT one of them.

Samson Effect
This is sadly the mark of a mindless corperation that can not stay slim and streamline itself for the new age its a huge blind monster striking out at easy targets,once it gets a taste of cheap bood it will not back down easily look at Sony and its unfair and illicit attack on importers.

@Mazinger-Z well for one GP didn't put up a picture of the E logo so the ESA would be even dumber to sue GamePolitics than it is to sue Kotaku

Wow, that's unbelieveable. You'd think that after all the battles for free speech the ESA's fought, that they wouldn't have their heads so far up their asses to try and take it away from a news blog.

I should get my mom to make a shirt like that, with 'Freedom of Speech - Rated E for Everyone' to make all the folks at Kotaku happy. ;) I must've read that phrase at least a dozen times there.

Long and short of it: ESA, you can't win this fight. No chance in hell. Cease, desist, and kindly pull your collective head out of your ass.

I rate this story "I" for irony.

well, more accurately "H" for hypocracy but yeah you get the idea.

And even if it was, it would not accomplish much. At the end of the day, Jack Thompson can whine all he wants. That's his First Amendment right. He's not directly the one signing bills into law legislating video games. It's those people that are the hazard and the ESA, fittingly, has challenged all of their bills and prevailed when they are found unconstitutional.

On some level, petty as it may be, the ESA might just be paranoid. I mean, have you seen a shirt mocking MPAA labels? The rating system is the meat and potatoes of the ESA and they are very defensive of it. Think about the well-known trademark bully, Monster Cable. They went off and sued the companies behind Monsters Inc., Monster Garage, Monster.com, Monster Energy Drink, not because they necessarily think they own the English word "monster," but because they didn't want to look "soft" in defending what they perceived to be some kind of trademark. Of course, Monster Cable's situation is an extreme, but you get where I'm going with this. Some companies can be very protective of their intellectual property. When John Doe starts mocking you, then Jane Doe does the same and can argue "Well, you didn't stop John Doe, why are you coming after me?"

But despite all of this, just like Monster Cable, it doesn't make them right. Their reputation is damaged over a very insipid choice on their part. The ESA does need to relax a bit. When you have a small fan-made operation making T-shirts like this, it's hardly a problem. When they start showing up at Hot Topic... then you might want to get your panties in a knot. XD

[...] [Gamepolitics.com has picked up the story and has a pretty decent breakdown of the events. Check it out for continued coverage] [...]

If only the ESA had this attitude when JT was slandering them...

There are probably more shirts that satirize the ESRB that are out there...that they wouldn't have taken action against years ago...Maybe their starting to cave in under all the Censocracy's assults.

Grahamr
caveing in and going sue happy against anything but the politicians and TV media?

gs2005 Says:
"Kyouryuu, the 'First Amendment' knife cuts both ways. The ESA does not make decisions lightly, so this is just blatant bullying on their part. Their behavior is simply inexcusable, considering they rely on the U.S. Constitution to fend off misguided politicians. By attacking an enthusiast website, it’s a minor (for now) PR blunder, plain and simple. Note-this behavior does not surprise me considering they are not “pro consumer” but 'pro industry,' but it is a bit disappointing."

Nowhere am I defending the ESA, in this post or the other. What they did is, to be blunt, absolutely stupid. My original post was mostly in protest of GP lumping all ESA member companies as being some sort of evil consortium that must therefore support this kind of action. That was a cheap, completely unfounded shot, plain and simple.

@zippy-No,more caving in and getting paranoid about their ratings. I would implore them to sue the censocracy,but i don't think that they think that that's possible.

Well, never mind all that, Cripple_MrOnion. This has nothing to do with this thread, but would you just listen to me for a little bit? See, I went to the local Yoshinoya today. Right. Yoshinoya. And the damn place was packed so full of people, I couldn't even find a seat. So I looked around a bit, and I found a sign that said "150 yen off". What the hell is wrong with you people? Are you idiots or something? Any other day you wouldn't even think of going to Yoshinoya, but if it's 150 yen off, you all flock in here? It's just 150 fucking yen! 150 yen! And you're bringing the kids too. Look at that, a family of four going to Yoshinoya. Con-fucking-gratulations. And now the guy's going, "All right! Daddy's going to order the extra-large!" Shit, I can't watch any more of this.

Yoshinoya should be fucking brutal. Two guys sit facing each other across a U-shaped table, and you never quite know if they'll suddenly just start a fight right there. It's stab-or-be-stabbed, and that's what so damn great about the place. Women and kids should stay the fuck away.

Well, I finally found a seat, but then the guy next to me goes, "I'll have a large bowl with extra gravy!". So now I'm pissed off again. Who the fuck orders extra gravy these days? Why are you looking so goddamn proud when you say that? I was gonna ask you, are you really going to fucking eat all that gravy? I wanted to fucking interrogate you. For about a fucking hour. You know what? I think you just wanted to say "extra gravy".

Now, take it from the Yoshinoya veteran. The latest thing among the Yoshinoya pros is this: Extra green onions. That's the ticket. A large bowl with extra onions, and egg. This is what someone who knows his shit orders. They put in more onions, and less meat. A large bowl with the raw egg, that's really fucking awesome. Now, you should know, if you keep ordering this, there's a risk employees might write you up. This really is a double-edged sword. I really can't recommend this for amateurs.

And you, Cripple_MrOnion, well, you should really just stick to today's special.

Sad thing is, the shirt has now been removed, so the ESA, apparently, are all for the First Amendment except when they choose to ignore it, what astounding hypocrisy.

Cripple_MrOnion - what would Nanny Ogg and Granny Weatherwax do with this suit?

My mistake, it's the guy who originally blogged the shirt who also got a nasty letter and chose to take it down rather than get wrapped up in a legal battle.

Sounds to me like some idiot Jr. lawyer is trying to score points with the bosses by racking up a few successful legal actions. And the bosses, not wanting to lose face by apologizing (or just stopping) are continuing the actions.

[...] Gamepolitics a fait un topo amer sur la situation, soulignant l’attitude hypocrite de l’ESA, qui entame des procédures légales contre des blogs, alors qu’il rase les murs lorsqu’il s’agit des procès intentés par des parents ou des procureurs aigris. L’ESA se protège derrière le premier amendement pour s’en tirer à chaque fois avec la liberté d’expression dans sa poche, mais son attitude envers les bogs d’actu JV en est une violation caractérisée. Le T-shirt jouit d’une protection légale supplémentaire. Loin d’enfreindre le copyright, il est une parodie, et à ce titre, a le droit d’être. La satire est un rouage nécessare à toute démocratie, et c’est là-dessus que l’ESA avait joué pour sauver GTA du bûcher. [...]