Monday, September 28, 2015

What have we learned?: Trademark Dreams Collection

I've had a weird notion the whole time I've been writing on this site that the stuff I'm putting out is at least a little bit educational. I'm sure as hell not replacing actual teacher instruction, and I keep things too simple for it to be a replacement for an actual lawyer's analysis...but I'm trying really hard!

In the spirit of the end-of-topic review sessions I remember from my high school days, let's apply all the things we "learned" about trademarks as a case study:

"Sonic Dreams Collection press splash image" by Source. Licensed under Fair use via Wikipedia
Just when you thought it was safe to put down the brain bleach. (source)
Aw yeah, now that the Sonic Dreams Collection's fifteen minutes of a fame have come and gone, I'm finally ready to get on the bandwagon to talk about it. For those of you who somehow missed the entire Internet for the month of August, Sonic Dreams Collection is an extremely unauthorized "game" using characters and motifs from the Sonic the Hedgehog games and puts them as objects in some Unity-Engine-tastic environments. These different environments let you make "original characters" based on Sonic and manipulate physics objects in the likeness of Sonic characters like Tails, Rouge, and other copyrighted/trademarked characters. I'm not going to bother getting specific up here, but you've gotta see this nonsense. No matter how sober and aware you are, you will certainly feel like you've been tripping balls for a week in the company of a stranger who can't stop telling you all about their favorite tentacle-porn artist on Deviant Art. Hit up Youtube, watch someone play through this craziness if you haven't already, and then we'll start dissecting the legal problems that in no way diminish how good a send-up this is of fandom.

Back? Cool. Remember, you can always drink to forget what you've seen.

Now, let's start with how strong a trademark Sonic is. We know that you can't trademark the general idea of a character running fast in an explorable environment and collecting powerups to beat a boss. If you could, Sonic wouldn't exist. Instead, you can trademark the brand of game you're making by creating a distinctive, "fanciful" name for it. "Sonic the Hedgehog" fits that criteria pretty well since (1) it was quite early to the animal mascot craze for platformers, (2) a hedgehog is a random animal with no inherent connection to running fast, which makes it fanciful, but we do have (3) which is the word "Sonic" being kind of descriptive of the character's speed. Overall, Sega's in a good place to be able to protect that brand...but it's the internet and people who want to make kind of demented fan works about your child-friendly character aren't going to be stopped by a little thing like that!

Webcomic from three years ago, still relevant today.
Stay weird, internet. (source)
And Sonic Dreams Collection is a cluster of games parodying the internet's id under the guise of being "lost" Sega games. We know it's a violation of trademark, but we also know what kind of violation it is. We learned about blurring, tarnishment, and and consumer confusion, and if this was a law school exam question we'd need to talk about all of them. Blurring is when a non-mark holder is likely to cause consumers to associate goods and services other than the mark-holder's with the trademark. It's what you accuse someone of when you're worried about your trademark getting turned into a generic term. Tarnishment is exactly what's going on here since it's pulling a cartoon mascot character from a family friendly line of games into the realm of mature self-insert fanfiction and inflation fetishes...which is kind of funny since I think Sonic had long since been tarnished with those things anyway, but the developers are saying out loud what has been known for years so they get the heat. And then there's consumer confusion, which is exactly what it says on the tin: the claim that people might mistake this for an actual Sonic game collection and have a bad reaction. THAT, is something that I think we need to talk about.

"No one" is going to mistake this for a real Sonic game. You have to go to a special, non-Sega website, put in a password, and then download it. There's no console release, no Sega logo appearing at the beginning, and a few seconds into any one of these games it's going to be pretty obvious that this is a joke. It's satire, and not even really satire about Sonic the Hedgehog. It's a goof on how the internet views Sonic - the subject of millions of pieces of strange, self-inset fanfiction and fanart that often have darkly sexual twists. If you know about that aspect of the internet, you know exactly what this is and can have a laugh about it without even once thinking it was an actual Sonic game.

But note the scare-quotes I put around "no one." We can tell ourselves over and over again that not a single human being would ever confuse the Sonic Dreams Collection with a real Sonic game. Well, my delightful little learners, if you've picked up anything from what I've been putting down this month it's that judges exist in a realm apart from what we think of as "common knowledge." The average federal judge - which is where a case like this would be heard - starts their career on the bench at around 50 years old. He or she does not know what a meme is, and would likely pronounce it "may-may." He or she has never heard of Deviant Art, and the first time they do hear about it they will likely assume that "deviant" means it's a site for weird sex stuff.....which ...well okay, a broken clock is  right twice a day, but that's not the point. There is nuance to this hypothetical case that a judge is straight up not going to catch, even when it seems obvious to us.

Sonic Dreams Collection is not going to be the big case that finally forces us to have this fight in the courts. Sonic Dreams Collection isn't going to be the poster child for the judiciary finally coming up with a useable, consistent definition for what is and isn't "fair use." But I do think we should look at Sonic Dreams Collection as a way of testing our skills for when that case does come. We need to know just how alien all this stuff sounds to the legal system and then figure out a better way to explain it. We can dig our collective heels in, try to force our perspective onto the law, and pretend we're fighting the good fight, but we'll lose.

Let's keep the Internet weird. Let's not lose it just because we didn't know how to talk about the things we care about.

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