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You can read Jamie Stegmaier’s take in the comments section here.

The First Amendment & Terms of Service

Medium Brow contends that their use is clearly parody and so protected under the first amendment. While generally speaking parody products are protected there are a few wrinkles (from my non-lawyer perspective to Medium Brow’s argument.

Here is some good reading where I am pulling the following opinions from Lott Fischer – a law firm specializing in intellectual property law.

the creator of the derivative work, the parody, must take only so much of the original work as necessary to bring to mind the original host work…

Medium Brow used actual icons from Wingspan (which are copyright protected), rather than using original and reminiscent iconography without directly copying Stonemaier’s card symbols.

Humor at the expense of the trademark owner, that assaults the wholesome image of a product has, in most cases, been unsuccessful in court.

I’m not sure how strong an argument this is, but Wingspan has a wholesome family (non-dystopian) image. Medium Brow’s representation clearly deviates from that image.

One of the most significant changes to federal dilution law was the TDRA’s creation of an express exemption for parodies. Before the TDRA, parodies were protected by the FTDA’s “non-commercial use” defense, a catchall exclusion which courts interpreted to include a broad range of uses of another’s mark, “from negative commentary on a personal website, to use of trademarks in political campaigns, to parody and artistic expression.”

Parody defenses are stronger when they are not for commercial use. Clearly a for profit Kickstarter doesn’t have this same protection.

While interesting from a first amendment perspective, none of this actually matters. Stonemaier isn’t suing Medium Brow for trademark infringement, they simply reported Medium Brow to Kickstarter for a violation of their terms of use.  

You won’t submit stuff you don’t hold the copyright for (unless you have permission). Your Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material, or you are otherwise legally entitled to post the material (and to grant Kickstarter all the license rights outlined here).

Even if the parody pack of cards would hold up in a first amendment lawsuit, Medium Brow clearly doesn’t own the copyright to at the very least Stonemaier’s card iconography – and therefore runs afoul of Kickstarter’s user rules.

Thoughts from an Indie Publisher

We’re too small for anyone to want to steal our IP for parody purposes, but this is my blog, so I have thoughts.

1. Owners of intellectual property 100% need to protect their IP. This isn’t a matter of Stonemaier stepping on a smaller creator, but failing to protect your IP can weaken your claim on it – or you can even lose your IP protections entirely. For a property like Wingspan this would be an absolute disaster.

2. This is probably a net positive for Medium Brow and Farms Race. While getting a successful (on track to be six-figure) Kickstarter pulled 3-days into the campaign sucks, my gut is that this will settle out to be a net positive for Medium Brow and Farms Race. They still have all their initial marketing contact lists (I assume), possibly their Kickstarter backer list, and they’ve gotten a fair bit of publicity out of the conflict.

What are your thoughts – should Medium Brow have made their parody packs in the first place, and should they be allowed to publish them as part of their campaign?