Disney gags on "Ho White" beer

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Boing Boing guestblogger Connie Choe is a health and culture writer by day and a professional kimchimonger by night.

According to Slashfood, an Australian brewery has reportedly set off the alarms in Disney's legal department with a Raspberry Ale ad campaign featuring Ho White, an "anything but sweet" character who blows smoke rings while reclined in bed with the seven dwarves.

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Tensegrity

@I Like Cake

It is satirical but not all satire falls under fair use. For example, this is for commercial purposes.

Like endymion, I am chagrined to find myself agreeing with Disney in this case. This ad clearly depicts the Disney characters as opposed to other interpretations of the snow white fairy tale.

Another example of people who are really bad at their jobs.
Anonymous

So what we’re accepting here is that Disney owns the very concept of “Snow White and the Seven Dwarves” a classic fairy tale? HOW THE F*CK DID THAT HAPPEN?

Color me perturbed.
Anonymous

It does make a difference if the parody is for commercial gain or not. The statutory test for determining fair use specifically says: n determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include … “whether such use is of a commercial nature or is for nonprofit educational purposes” (http://www.law.cornell.edu/uscode/17/107.html). The commercial nature is not the only factor; it is just one factor to consider. Parody never gets an automatic fair-use stamp. A court is the proper place to examine Disney’s claim.

You might wish to refer to Campbell v. Acuff-Rose Music (510 U.S. 569) where the supreme court took up the case of a commercial parody, and ruled it fair use. One difference in that case, though, was the parody was the product itself. I think the case law holds parody advertising to a lower standard.
pinehead

Well, that’s a very classy advert. I’ll be sure to run right out and buy as much of their obviously high-quality beer as I can. Because the label doesn’t at all lead me to assume the contents of the bottle might have been produced in that little bedroom scene.

Oh wait, beer looks like foamy pee and tastes like distilled hatred, so I wouldn’t drink it anyway.
Anonymous

Big companies don’t care about the law. They’ve got lawyers working full-time on salary, and have to keep them busy somehow.

99% of the otherwise legal ‘infringements’ go away just as soon as that Disney RapeCo. letterhead hits their desk. It doesn’t matter how right you are, or how much the law is on your side, just the threat of legal action from someone as powerful as Disney makes most people back down.

Very, very few people fight due to the expense of winning. Even if they’re in the right. Even when you win the case, the arguments can be drawn out so long you’ll be bankrupted by legal fees before it is over. It’s not worth it to fight, so even those in the right back down.

The legal system, weaponized. Just business as usual.
Anonymous

While Disney does not own copyright on the story of Snow White, it does have an enormous team of well-funded lawyers who will bankrupt anyone who attempts to fight them in court. This is why the ad had to be pulled.
AirPillo

The story of Snow White and the seven dwarves was around generations before the Disney cartoon’s makers were even a glint in their parent’s eyes.

It’s always bothered me how shamelessly Disney is willing to take an ancient story, make a movie or two out of it, and presume to usurp ownership of the entire canon of the tale in perpetuity as a result.

The similarity in artistic style between the image and the cartoon is a bit cheeky, but Disney would still be in the wrong to act against it.
- Brainspore
  
  AirPillo: So you disagree that the seven dwarfs (Disney’s spelling) in this image are clearly meant to represent Bashful, Doc, Sneezy, Dopey, Happy, Sleepy, and Grumpy? Those names and personality traits weren’t part of the original fairy tale.
ROSSINDETROIT

Buy it while you can for the collector value. It’s about to get banned, recalled and erased from the history books.
Anonymous

Ugh. Raspberry Ale? What bright lad dreamed up that idea? No wonder they were desperate enough to come up with this ad. I expect they actually hoped for Disney to move on this. By the time the Disney Legal Machine gets in motion, they’ll have managed to offload the last ounce of this crud, throw up their hands and say, OK, you win! We’ll stop making it!
Anonymous

Can’t we all just take a step back and look at this as “haha” that’s funny. A little on the sick side, but all in all, funny. Let the legal departments duke this out and lighten up! Life is tough enough out there! Smile and get on with your day!
Anonymous

Disney’s legal dept would be scarey to have come after you! These advertisers must be idiots!
Paul

I’m with Tensegrity on this one.

While I hate agreeing with Disney, on this one they are in the right (legally at least).

This is clearly visually riffing on the Disney version of Snow White and the Dwarves, but is not satirising it. The simple test is if you were to change snow white for Cinderella, or some other character, the joke would still work. I.e. Snow White isn’t the target. It’s the same reason Penny Arcade lost out against American Greeting over using Strawberry Shortcake, AG weren’t the target of the satire, American McGee were, so there is no “satire defense”.

Disney are not claiming the right to Snow White (although I’m sure they’d love to), but to their version of Snow White.

Of course, all that doesn’t stop Disney’s attitude to copyright being utterly hypocritical.
Anonymous

Anyone else think she looks like Helena Bonham Carter in this illustration? Hottest Snow White I’ve ever seen …

Also, the “hard work” of the Disney-employed creators of Snow White was long, long ago. The only reason Disney can keep the copyright is because they keep lobbying (read: buying) Congress to extend the copyright protection period. Disney has no *moral* right to these images, only (arguably) a legal right which they bought and paid for.

I have absolutely no sympathy for Disney, and neither should you.
The Chemist

I’m just glad that Lewis Carrol’s illustrations are so close to Disney’s interpretation as to render any Alice in Wonderland art work outside their ability to bully anyone over.

I think that the people were well within their rights to use that particular imagery- even if it’s derived from Disney. It’s satire and parody- regardless of commercial use. Lest we forget copyright laws were created to serve a cause, and have not always-been and will not always-be. They are designed to ensure that an artist or creative enterprise profits from their work- but if I paint Snow White on my mailbox.

Subsequent derivative works are also part of the entitlement of the creator, but no reasonable person sitting down and creating these laws from scratch would assume that parody, satire, and criticism applies. This is especially the case when the work in question is itself a derivation of a work in the public domain. A brewery that is not capitalizing on the spirit and product of Disney, but on a derogatory slur at Disney’s expense is hardly infringing. There is no substantial reproduction of product, and certainly no implication of endorsement.

If this is not how the law works, this is how it should work.
Anonymous

Ya like Snow white and the seven little pimps
Dewi Morgan

This is an interesting case, and I hope BoingBoing posts a followup eventually, when the legal dusts settle.
Anonymous

The visual aesthetic is not like disney’s in the least and disney does not own snow white. Also, this is parody, and parody for profit is legal. See MAD/Cracked/Crazy/etc… Unfortunately dinsey has money and isnt afraid to use it to crush the freedom of others.

Shouldnt they be spending their resources on figuring out how to sell more sex to 8 year old girls?
- Fett101
  
  There is a large difference between Crack/Mad/etc and this ad though, Anon. For example, a Mad comic parodying a movie is doing to so to comment on the movie itself. It makes fun of it’s characters, plot, shortcoming, etc. This ad does nothing of that sort and appears to just be aimed at the “We’re making a typically innocent character appear naughty. Buy our stuff!” approach.
Anonymous

Oh, fer crying out loud…
all you people siding with Disney: parody IS still considered “fair use”. Makes no difference if its parody for parodys sake or if itÂ´s parody for commercial gain, and – if the people vs Larry Flynt taught us anything – it doesnÂ´t HAVE to be funny to still be parody. Just ask the Wayans bros.

(For the record, NO, “if you were to change snow white for Cinderella, or some other character”, the joke would actually NOT work since Cinderella does not hang out with seven dwarfs.)
Anonymous

Looks like Stumpy is Pissed Off……
Anonymous

Unfortunately I find myself on the same side as Disney this time as well.

The illustration is an obvious reference to the designs used in the film, particularly the windows and other interior elements.

Even if the artists & company want to pretend that they weren’t attempting to rip off the Disney designs, it’s close enough that a child could reasonably be expected to confuse it with the original, and thus seems inappropriate for selling alcohol.
Anonymous

In a parallel world, one where Disney hasnÂ´t spent half a millennia lobbying for more and yet more extentions of copyright, the Disney version of these PD characters would be out in the public domain now anyway.

I think thatÂ´s important to remember.
Church

@Anonymous “The illustration is an obvious reference to the designs used in the film, particularly the windows and other interior elements.”

WTF? Design Elements? Really?
Anonymous

people should be able to draw stuff without giant corporations sending government thugs to bust their balls

its sick that we could even argue about it
- rrh
  
  It’s not just “draw stuff” but “draw stuff and sell beer with it.”
  
  Maybe I’ll start selling my “Dear god, make everyone die,” beer. It’s got an adorable cat on the label.
  
  Without retroactive copyright extension, (which is stupid) this particular case wouldn’t even be an issue, but it’s not automatically a failing that we could argue whether a law that benefits a large corporation is still a good law.
fusiondesigner

The seven dwarves were actually considered a highly dangerous and organized criminal gang. http://www.gamehobbit.com/action-games/play-larry-and-the-gnomes
Anonymous

“I’m amazed to find that I actually agree with Disney here. That ad isn’t just a reference to the Snow White story; in its visual aesthetic, it’s a reference specifically to the Disney movie. It’s lazy advertising which simply uses, and abuses and dilutes, someone else’s hard work.”

1) Parody.
2) That hard work was nearly EIGHTY YEARS AGO.
Church

“This is clearly visually riffing on the Disney version of Snow White and the Dwarves, but is not satirising it. The simple test is if you were to change snow white for Cinderella, or some other character, the joke would still work.”

Um yeah, plenty of jokes will still work if you exchange the interchangeable characters. That actually seems to bolster the artist/brewery’s argument. Snow White isn’t all that special, is she?

Plus, Disney’s Snow White happened over SEVENTY YEARS ago. About ten times too long to be collecting rent, if you ask me. People should be able to do shit with the crap that happened within their, y’know, LIFETIME. That’s how culture is supposed to work.
LYNDON

It does make a difference if the parody is for commercial gain or not. The statutory test for determining fair use…

I might add that this is in Australia. If they’re anything like New Zealand there’s no explicit (and very thin implicit) protection for parody.
benher

Why entire freaking societies allow themselves to be bossed around by a three-finger rodent, I’ll never know. Get your spines back, humans!
Anonymous

Disney’s legal department is formidable – ask the mid-90s. http://www.grudge-match.com/History/micro-disney.shtml
chris23

In going after such supposed infringements, big corps don’t need to be right, they don’t need to have legal grounds, and they don’t even need to win the case. That’s not the point. By forcing the defendant into a protracted legal battle, they can bankrupt pretty much any small-time brand they think is getting in their way. Arguing about whether or not it’s fair-use is academic at best.
obdan

Snow White has a pimp?
UstinJay

eep!
Anonymous

Well, obviously the ad worked. The beer is being talked about around the world, and it barely cost them a cent.

And when discussing the legality of the ad, I might remind people that this ad is Australian, so citing American case law isn’t particularly useful. In fact, it may well be that some of Disney’s copyrights HAVE expired Down Under.
Machineintheghost

Don’t mention the dwarves.
http://www.dccomics.com/vertigo/graphic_novels/?gn=1606
Anonymous

that’s just asking for it.
The Chemist

Oops, I could have sworn I had decided to write in complete sentences on alternate days, my comment should read,

“…if I paint Snow White on my mailbox it’s nobody’s business.”

in the appropriate place.
Santa’s Knee

Those would be Short Statured Adults, thankyouverymuch!

http://en.wikipedia.org/wiki/National_Organization_of_Short_Statured_Adults
Anonymous

Joke ‘em if they can’t take a f*ck.
DiomedesTydeus

Wasn’t Snow White a Grimm fairy tale? Which means it probably goes even earlier than that… why would Disney have a say about this?
huntsu

Now Disney owns the entire Snow White story? Give me a break. There’s no way that art is derivative from their movie or merchandising, and Disney would be wrong to consider doing anything.
Editz

Reminds me of the old Topps ‘Wacky Packages’.
endymion

I’m amazed to find that I actually agree with Disney here. That ad isn’t just a reference to the Snow White story; in its visual aesthetic, it’s a reference specifically to the Disney movie. It’s lazy advertising which simply uses, and abuses and dilutes, someone else’s hard work.

There are so many important examples of bogus infringement claims brought up on boingboing, that surely it’s instructive to see one that looks like the real deal.
- Anonymous
  
  Funny thing is I know these guys who own the brewery and because Disney stole the story of snow white in the 1st place from the brothers grimm Disney had no legal grounds to sue. All hey have to do is change the way the dwarves hats look. Sucked in disney you evil bastards. Beer and sex in advertising still in. Hey its not as if disney isnt sexualising everything they spew out to kids anyway.
OoOoOo

Like this version?

http://www.pitt.edu/~dash/dwarfs.html
Anonymous

It really doesn’t matter if Disney doesn’t have absolute rights to Snow White and the Seven Dwarfs… Pretty much all they have to do is make the argument that by using beloved childhood icons, this product is being marketed to children, and wait for the “Joe Camel” think-of-the-children moral panic to ensue, and then watch the company get in trouble with government regulators.

I mean, this product probably was flying below the radar in terms of government regulations on marketing alcohol anyway. Given their extreme regulation of things like video games, I doubt that Australia is somehow a Laissez Faire paradise when it comes to booze marketing.

If they can also manufacture a little “Ho White is sexist!” hysteria to go with it, all the better!
- Anonymous
  
  Check some of the later posts. They have children looking at this, seeing the “obvious” derivation from the windows (!) and composition, and apparently purchasing and drinking alcohol. Of course, if they watch the original cartoon they’ll go find a bottle with a skull and crossbones on it, douse an apple with it and cork off, expecting a nice nap with everybody crying over you, then wakened with a kiss from a prince. Tempting!
Church

This is why copyrights should be short.

(pun not intended)
Mark Frauenfelder

Maybe they should have used the
Remember, She’s way over 18 now

My girlfriends and I are so upset about this male dominated, foreign themed, chauvinist advert that we are thinking of writing to Jamieson’s to offer our services to help produce an follow-up ad with much broader appeal, one that matches the image of Australia Fair, promotes the rights of 100 million of our residents and will be enjoyed by hetero, feminist, gay and lesbian communities alike

Yours sincerely

Bo Peep and her sheep

I Like Cake

Erm, isn’t this satire?

Anonymous

I’m surprised they don’t shriek “Virtual Child Pornography!” over this…? In the original story, Snow was 14 years old. I think at 12 the queen tried to kill her and she was with the dwarves for two… Not that that was “Underage” until modern “Think of the Children (and nothing else, like how govt. is bleeding you dry and doing nothing)” legislation.

Anonymous

Right on. But watch out: once the “Save the Children” mantra hits the air, nobody can hear anything else.

Brainspore

The Seven Dwarves weren’t given names until the 1937 Disney movie, so the just fact that these Dwarfs appear to represent Bashful, Doc, Sneezy, Dopey, Happy, Sleepy, and Grumpy is a good indication that this idea wasn’t lifted directly from the Brothers Grimm.

If there’s a defense to be had against the Disney legal machine it lies in some kind of fair use provision such as “parody,” not “we didn’t intentionally reference your licensed characters.”

Anonymous

I heard that Snow White was effing Goofy.

edmonton

The seven dwarfs were in a bath tub feeling happy.

so Happy got out.

argh, silly joke

Anonymous

@edmonton: you’re right, it should be “so Happy got OFF”

Anonymous

“I used to think seven up was a drink until I discovered Smirnoff” – Snow White. c.1977 (based on seventies vodka advert)

The ho-white ad’s not illegal its just a lame ripoff by some lazy oz admen