Copyright complaint kills Peanutweeter

Peanutweeter, the extremely funny and clever best-of-Twitter project that inserted odd tweets into oddly matching Peanuts panels, has been taken down from Tumblr following a DMCA copyright complaint from the Iconix Brand Group, who bought the Peanuts copyrights.

The site's creator, T. Jason Agnello, said he doesn't plan to fight the takedown.
"I believe I put a good-faith effort into specifying that this was a fair use parody," Agnello said Friday in an e-mail to Wired.com. "However, I don't have the legal might to argue it. Nor do I wish for the stress in doing so."

Update: a good piece of fair use analysis on @Peanutweeter: IN DEFENSE: Why @Peanutweeter Should Be Considered Fair Use (via @dhowell)

Good Grief! Peanutweeter Gets Taken Down Following DMCA Claim

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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GyroMagician

Thou shalt not create, only purchase…
- Just Good Sense
  
  While, yes, the concept of mixing old cartoon panels with found witticisms fits most definitions of the word “create,” an alternative approach might be to come up with some appealing characters of one’s own and write new one-liners. ::shocked face:: I know!
  - mypalmike
    
    “an alternative approach might be to come up with some appealing characters of one’s own and write new one-liners. ::shocked face:: I know!”
    
    This was my thought as well. Lazy mashups like this don’t deserve serious defense. They’re fun and all, and I’m just as guilty as anyone of creating them (I used to frequently do photoshop contests on Fark, and my http://www.mypalmike.com is a lazy mashup). But anyone who slaps some text on someone else’s work should know that they will have to cease and desist if they get noticed by the copyright owner.
Anonymous

Good heavens. How about:

1) These are not full strips, but single panels.
2) They do not pretend to be the originals, and they can hardly be mistaken for the originals.
3) No money is exchanging hands.
4) No money that might be going to the copyright holders is being diverted.

Now, say along with us: “fair use.”

I knew you could.

That’s hardly compelling legal analysis (though nicely condescending).

First, let’s remember that fair use is an affirmative defence. That means that the defendant needs to prove fair use in order to not be guilty, but the baseline presumption (assuming actual copying, which is not in dispute here, has been shown).

Most people here seem to be latching on to the “parody” defence. But it’s not clear this is truly parodic, as defined by the Court in Campbell v. Acuff-Rose. In order to be parody, and not satire, the “parody” must comment on the work it is referencing. Now, I’m not a huge Peanuts fan, so I don’t know if the inserted caption parody Peanuts in a way that demands they be inserted in Peanuts strips. Could the captions be effective if they were inserted into another strip? Do the captions mock Peanuts conventions? Is Peanuts itself the object of the satire (http://peculiarsleep.blogspot.com/2011/06/in-defense-why-peanutweeter-should-be.html seems to say that twitter uses are the real object of any satire)? If the answer is no, and the captions could be effectively used on other comic strips, then the work is not legally parody, but satire.

Fair use is broader than simple parody, however, as it is a four-factor balancing test covering: 1) the purpose and character of the borrowing; 2) the nature of the copied work; 3) the amount and substantiality of the work copied; and 4) the effect upon work’s value.

1) This essentially asks if the use of the copyrighted work has been “transformative,” and parody falls under this factor. Parody is highly transformative, so if you win on parody then this factor will usually prevail over the other remaining factors (i.e., true parodies can be commercial and can borrow an entire work,as in the case of 2 Live Crew’s parody of Orbison’s Pretty Woman). This is why the parody question is so important, because a finding of actual parody is essentially dispositive.

2) This prong essentially looks at whether the copyrighted work was fact (not very protected) or fiction (which is more highly protected, since it is what copyright was designed to protect). Peanuts is obviously a highly creative work of fiction, and is more highly protected.

3) While only a single panel is copied, Learned Hand famously said that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Thus in Harper & Row v. Nation, the mere excerpting of a very small portion of a book for review purposes was seen as implicating this factor. Since the Peanuts panels are instantly recognizable and each four-panel strip is independently copyrighted, this factor probably doesn’t favor the defendant.

4) One doesn’t need to be commercially exploiting a copyrighted work for it to have an effect on the work’s value. Others have already suggested how this might impact sales of the original Peanuts (both positively and negatively), and I’m sure lawyers on either side can make arguments. But this prong is heavily implicated (though over-ruled) by true parodies, as true parodies by definition criticize the original work and are seen as damaging the fundamental nature and character (and thus commercial value) of the underlying work (if the rights holder didn’t see them as damaging, she would probably licence/authorize the use). On the other hand, in New Era v. Carol a different approach is taken, and one that seems to validate the idea that the unlicensed use can actually increase the market for the original. I suspect most courts would find this favors the plaintiff, however.

In short, the question of Fair Use is a lot more muddled than presented here, and hardly a slam dunk. Naked assertions that it is a non-commercial parody that doesn’t borrow very much (though if it really is a parody the commerciality is irrelevant) aren’t likely to get you very far in court.
Anonymous

Has anyone noticed that some people’s conception of law (especially in the case of copyright) borders on religious devotion?

“It’s illegal because it’s against the Law. Do not ask questions, do not pass go, speculation is useless. Praise the great unquestionable Law. Amen.”
- azaner
  
  “It’s illegal because it’s against the Law. Do not ask questions, do not pass go, speculation is useless. Praise the great unquestionable Law. Amen.”
  
  Well, when something is against the law, it IS illegal. By definition. That doesn’t mean you have to agree with it, and in fact, we live in a country where you can try to change the law if you so choose. No one is saying don’t ask questions. You get to decide what to do and what not to do. You can decide to break the law if you wish. But you don’t get to personally decide what’s illegal and what’s not. Law and morality are not the same thing, and are not intended to be.
  
  As for Peanutwitter, it’s a very poor poster child for the “fair use” argument. It’s nothing but “lazy use.” At the very least, draw your own images that parody Peanuts, for cryin’ out loud. Just reposting Schulz’s own drawings with different words? No way that should be protected under ANY reasonable economic system. Why not just rip the cover off a Peanut’s book, slap your own cover on it, and sell it as your own? Why not just mirror-flip all the Peanuts cartoons horizontally, leave the text alone, and sell the “new creations” as your own?
  
  Someone above compared Peanutwitter to Yankovic. Weird Al doesn’t just record parody lyrics over the original artist’s instrumental tracks–he records his own cover version of the music. And pays a share of royalties to the original artist for doing so, like any other cover artist.
  
  Using and building upon an idea from, or a component of, someone else’s previous work in your own work is not only fair, it’s essentially unavoidable. But simply reproducing someone else’s work and altering it somewhat is not the same thing. There’s no bright line between the two, but most people can tell s#!& from Shinola, and champions of “fair use” should take a more reasonable position along that spectrum. Peanutwitter is nowhere near the reasonable spot.
- emmdeeaych
  
  Yes, because there is a difference between a grown up and an adult.
  
  A lot of people need to be told what to do.
hohum

I personally think these would be far less effective if they were ‘redrawn.’ While that may make less of a case legally, I don’t really buy it from an artistic perspective. And again, legally perhaps it’s not legally parody, but anyone who doesn’t see it as parody, as satire has some frightening definitions in my mindâ€¦
soubriquet

Clearly, Peanuts is an owned commodity, and a nice little earner for the rights holders. Also, clearly, it’s copyright, and that fact is asserted in every published peanuts strip.

I’m no fan of copyright law, but I’m bemused as to why anyone would be surprised that the rights-holder to a globally known cartoon series, which sees life with an innocent child’s eye view, might be unhappy at a third party, publishing globally, peanuts strips with altered wordings.

Also, as an un-american, I’m none the wiser as to the meaning of your chosen example: what are wonder-woman underroos?
- JustOk
  
  as near as I can figure, they are subservient kangaroos from the Amazon.
  - soubriquet
    
    Whatever next? Bondage koalas?
- jerwin
  
  Commercial for Underoos
  I’m glad that Linus is learning to subvert gender roles.
  - soubriquet
    
    That made me laugh!
    
    Now I know what underroos are… we poor brits never had them, sadly.
    Mind you, I’m not sure I’d be cut out for the responsibilities of being a superhero.
    
    It did pop the bubble, though, of the slightly more appealing notion that they underroos were subservient kangas.
Anonymous

Peanuts is no longer being produced and now longer relevant – it’s stagnating. It’s mash-ups like this that will keep their property vibrant, modern and in the public eye. Iconix are missing a trick
- Anonymous
  
  Peanuts is, certain strips notwithstanding, timeless. There are a very small number of strips that reference events that were current in the time the strips were drawn.
  
  I’m a huge fan of Charles Schulz (and in fact often hang out at the bar beneath his father’s barbershop in Saint Paul), but this is so obviously parody that “Iconix” should be ashamed of themselves.
Anonymous

Underroos are wonderful underwear sets that were around in the late 70s and 80s. For boys, it was a t-shirt and briefs, and for girls, a tanktop and briefs, all adorned with your superhero of choice. I can still sing every word of their jingle from commercials.
Jim

I hate to kick a creative guy when he is down, but I think “extremely funny” is a bit strong.
Anonymous

There needs to be a site that you can inform of missues of the DMCA to otherwise its just a law that can be abused and should be taken down.

In America where the DMCA is there are also fair use and parody laws but why should someone have to fight even to the courts for the law to be honered?
professor

Not a very smart move by Iconix (I guess the decision was made my lawyers, rather than people who actually know how to build a business). A bit of clever cooperation with Jason Agnello and Peanutweeter could have really boosted the Peanuts brand again. Unfortunately it seems that “protecting the brand” is more important than finding creative ways to generate more business…
- freshacconci
  
  Well, the copyright holder is only interested in making money off the brand, not in being creative. I understand what you’re saying, that someone smarter would be interested in building on the legacy of Peanuts not just making money on licensing but since Peanuts as a creative enterprise died with Schulz, the copyright holder just wants to make money. It’s too bad Schulz’s family sold the rights to a group with so little vision.
  - professor
    
    You may be right in that the copyright holder just wants to make money (without any effort), but since there can be no new comics coming out, returns on the brand will slowly diminish. Using a little creative thinking and building on the legacy could easily generate an increase in returns and delay the downward trend for quite some time.
    - Anonymous
      
      Yes, and that is how it should be. The creator is dead and no new creations will be put forth … so the returns will diminish.
      
      Copyright law was originally made so that the *creators* could profit from their creations during their lifetime. Not so that some corporation who purchased the rights could earn money ad infinitum.
      
      That is the nonsense behind what they made copyright into, and the people who blindly defend it, puzzle me greatly.
Anonymous

There should be reasons to be named for making a lawsuit. I mean… in what way… any way one could think of, did this harm the company with the Peanuts rights?!

Ok, one scenario. Now, that all the people have read those Twitter inserts in Peanuts panels, they don’t want to read Peanuts anymore.
Sales of Peanuts comic books went down to almost zero. The right owners are almost bankrupt.
Allright, that makes no sense.

Let’s try another one. Due to sexual themes in the Twitter posts, it throws a bad light on the innocent picture of the Peanuts. Moms stopped buying their children Peanuts comic books. The sales went down to almost zero, The right owners are almost bankrupt…
Wait yeah, that doesn’t make sense, too.

Ok, here’s the last one…
The right owners saw, that since they bought the rights, though they never did anything productive with or to the Peanuts, now that someguy made creative use of AND somehow advertising FOR the Peanuts comic books – they could sue him – and make loads of money. Because they’re capitalist a**holes. The End.

And here’s what I would wish for: The sales for Peanuts comic books go down to almost zero, the right owners go bankrupt.

!
Anonymous

Peanutwitter is not lost, it is simply now not one person’s responsibility.

We have the graphics. We have the font he used. This is not a difficult tradition to continue.
aixwiz

Here are a few ideas:
1. Contact EFF for help in protecting @Peanutweeters right to use the Peanuts cartoon for parody purposes
2. Boycott Iconix Brands brands
3. Start posting the images that were on @Peanutweeter everywhere
4. Make your own @Peanutweeter and post it

Until the companies quit taking away our rights as human beings for their own use, we need to keep using those rights to show they don’t own them.
Anonymous

is there a database with the already posted images?
aalleexx

Even if he did fight Tumblr, they are nothing short of pitiful in dealing with DMCA. I had a tumblog that got taken down and I am fighting it. Even with continued calls from my lawyer, the site hasn’t returned. It has been nearly a month since it was supposed to.
Anonymous

Parody was legal last time i looked.
Deidzoeb

But how will we encourage artists to produce interesting new things if they don’t have the ability to sell copyrights that last decades after their death? They’ll all tighten their artistic sphincters and withhold art just like Ayn Rand warned us.
Anonymous

Nice to see all of their brands on their website… I know what I won’t be buying anytime soon.
jerwin

Copyright infringement is akin to trespass. Sometimes the borders aren’t clearly marked.
g0d5m15t4k3

Depressing times we have where we won’t fight a legal battle because of Cost even when we know we’re Right.
Anonymous

@YaleLawTech weighs in on the Peanutweeter controversy http://www.yalelawtech.org/?p=4209
benher

Ah America!
Ridding the net of one more non-commercial entity – making it safe for shoppers once again!
John A Arkansawyer

For those of you who are unclear on the concept, here’s an example of actual parody of Peanuts. Hope this helps.
CitizenJohnJohn

IANAL but I don’t see how this is parody.

The closest previous case seems to be Campbell v. Acuff-Rose Music, Inc, but in that case 2 Live Crew re-recorded Pretty Woman, they didn’t just copy it.

This is straight-out copying of the image portion of a Peanuts cartoon, and whatever the rights and wrongs of the current state of copyright law, I can’t see how T. Jason Agnello is not in the wrong here.

Sensible man not to take on a fight he will lose. Pity he doesn’t seem to have done any research into copyright before filling a website with copies of material owned by someone else.
- Mantissa128
  
  Good heavens. How about:
  
  1) These are not full strips, but single panels.
  2) They do not pretend to be the originals, and they can hardly be mistaken for the originals.
  3) No money is exchanging hands.
  4) No money that might be going to the copyright holders is being diverted.
  
  Now, say along with us: “fair use.”
  
  I knew you could.
  - CitizenJohnJohn
    
    Thanks for the ‘good heavens’. Did you roll your eyes too?
    
    Thanks also for pointing out a couple subtleties of US fair use law I wasn’t aware of.
- Anonymous
  
  Weird Al Yankovich takes the orginal melody and changes the lyrics and he is a well paid parody artist.
  
  This guy takes the image and changes the lyrics and gets slapped with a legal takedown.
  
  The reason you don’t see this as parody is because you don’t know what that is. Image is not more protected than melody.
  - Brainspore
    
    Weird Al Yankovich takes the orginal melody and changes the lyrics and he is a well paid parody artist. This guy takes the image and changes the lyrics and gets slapped with a legal takedown. [...] Image is not more protected than melody.
    
    One key difference is that Weird Al performs the music, he doesn’t just use the original recording and dub over the lyrics. As far as I can tell this blogger didn’t actually draw anything. Still funny, but not necessarily legally protected parody.
  - Ratio
    
    “Weird Al Yankovich takes the orginal melody and changes the lyrics and he is a well paid parody artist.”
    
    Does Weird Al play a recording of the original song, dub someone else’s lyrics into it, and pass it off as something that he created? Because that’s the only way your analogy holds up.
    
    In reality, Weird Al re-creates the original melody using his own instruments, his own studio, and his own money and replaces the lyrics with original words that he wrote himself.
    
    See the difference?
  - peterbruells
    
    Errr.. doesn’t Weird Al also clear his parody’s with the original artists and doesn’t go ahead, when they oppose?
    - Deidzoeb
      
      Weird Al takes a weird position, IMHO. He asks the original artists for permission, but when he was recently turned down by Lady Gaga after recording it for her consideration, he posted the song on the web instead of putting it on an album. I don’t quite understand the distinction. Still released to the public, but not as widely.
      
      http://boingboing.net/2011/04/20/weird-al-snubbed-by.html
      
      From his blog:
      ‘My parodies have always fallen under what the courts call â€œfair use,â€ and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album, so of course I will respect Gagaâ€™s wishes. However, given the circumstances, I have no problem with allowing people to hear it online, because I also have a personal policy not to completely waste my stinking time.’
      http://alyankovic.wordpress.com/the-gaga-saga/
Anonymous

As I understand it, DMCA means the copyright claimant only has to issue a take-down notice to the web site host, in this case Tumblr. No lawsuits are involved (only threatened). The web host is unlikely to be interested in fighting, so … Down it goes.

So what the law does, is allow companies to intimidate with “our lawyers are bigger than yours” threats. Happens all the time.

Remember this next time you have a vote.
Anonymous

I propose a “Three Strikes Rule” for the owners of copyrighted material. If you sue someone and lose because their usage was fair-use, you get a strike. Three strikes and the copyrighted work enters public domain.
Anonymous

Money always trumps law in the good ole USA.
silkox

The mother of a friend of mine was a teacher. Once she put together a reading-is-fun bulletin board with Peanuts characters. She sent a photo to Charles Schultz with a request for permission to use the characters. She expected to get a nice letter back, but what she got (according to the family story) was a take-down notice from Charles Schultz himself.
Anonymous

As much as I understand the reasoning, I hate to see it go. I’ve shared a few of his quips much to the amusement of many of my friends. I too agree that it brought Peanuts out of a dusty corner and back into the light again. I made a recent stop in Needles and sadly realized that nobody understood my “Where’s Spike?” comments. (Snoopy’s brother, for those not in the know)
Anonymous

How is this any different to Garfield Minus Garfield?

Bad form Iconix!

Perhaps we need a Peanutweeter day where everyone, everywhere on social media sites posts their own version? :)
- quicksand
  
  It’s not.
  Actually I’d say Garfield has a stronger case than Peanuts, because Garfield minus Garfield – to me anyway – undermines the original Garfield comic strips. They are much less funny after you’ve browsed a whole load of GMG.
EvilSpirit

…a globally known cartoon series, which sees life with an innocent child’s eye view…

It’s a bit beside the point of the thread, but this is a gross misinterpretation of the Peanuts worldview. Schultz had a deeply bittersweet and melancholy personality, and his characters are radically unlike real children.
Unfair Robot

“With innovative and creative advertising and promotions, Iconix is an award winning industry leader in promoting and elevating brands in the marketplace through traditional and new media platforms.”

I think I just threw up in my mouth a little bit.
Anonymous

How about: http://www.losanjealous.com/nfc/
Lolotehe

What a shame. That was the first time “Peanuts” was worth reading in a long time.
Gulliver

http://www.youtube.com/watch?v=jcvd5JZkUXY&feature=BFa&list=PL8F18DF1C78156E9C&index=38
oheso

Wow, I’ll bet no one saw that coming …

I’m only surprised it took as long as this. The blog has received lots of attention.

Jason has a knack for finding tweets that stand out, and matching them with panels that brought out absurdity or shock value. At times these played on our original conception of the Peanuts characters and thus the blend created something new. (I wouldn’t say he was always successful at it: producing art several times per day on demand is a difficult task.)

Prediction: this isn’t the last we’ll hear of Jason.
RonTrash

I agree with allen, the act of “protecting” Peanuts hasn’t really protected it from anything, the only threat here is to the richness of our culture. It’s sad. [HOLDS RAG TO FACE AND WAILS]
Michael Gerber

I think it’s really interesting that this post comes right after one hawking lollypops based on the Cthulu mythos.

It’s a good time to be an IP lawyer.
Verre

Fair use needs a posse.
ackpht

Well, when something is against the law, it IS illegal. By definition. That doesn’t mean you have to agree with it, and in fact, we live in a country where you can try to change the law if you so choose. No one is saying don’t ask questions. You get to decide what to do and what not to do. You can decide to break the law if you wish. But you don’t get to personally decide what’s illegal and what’s not.

I am not a Christian, but- AMEN!
allen

Whether or not there was a copyright violation taking place, I feel our culture is the poorer for losing peanuttwitter. I believe that we enacted copyrightin an effort to incentivise creators to enrich our culture. This is an example of copyright existing to commodify culture, to the culture’s detriment.

I liked peanuttwitter. I’ll miss it.
Anonymous

We all knew this was going to happen. Did no one archive the strip so we could have a torrent of the ones that were made? I was counting on you people…

-Anonymous
kmoser

Christ, what an ass–um, tired idea. These days, the whole “replace the words in a classic comic strip with random quotes from another source” meme is nothing more than a parlor trick: good for a laugh or two, but ultimately not worth turning into a whole schtick.
- Deidzoeb
  
  True, Guy Debord would not be impressed.
Thad E Ginataom

Enjoyed it, didn’t think it would last long, and not in the least surprised to see the holders of a valuable copyright assert their right.

Any my vote is that yes, it was a breach of copyright. Let’s face it: Peanuts was, and continues to be, purely commercial art.

one or two might have been fair use? Who knows: speculation is useless.
Gulliver

How much justice can you afford?
- Jamie
  
  I think it would be a pretty hard case on either side, and noone would come out the other end feeling all that great. I am sad they issued the takedown, but I can’t say they have no basis, and I think he is right not to fight it.
  - Gulliver
    
    I think it would be a pretty hard case on either side, and noone would come out the other end feeling all that great. I am sad they issued the takedown, but I can’t say they have no basis, and I think he is right not to fight it.
    
    Maybe so. What irks me is that the case will never even be heard because you have to be loaded to go up against major IP firms in todayâ€™s endless appeals process governed by nebulous laws whose interpretation has been legislated from the bench by a series of very subjective judgments. Understand, Iâ€™m not blaming the judges. But precedent-based common law has been used by trusts with bottomless pockets to establish unequal protection for themselves that small-time content providers simply cannot hope to afford to contest.
Anonymous

It might be an interesting challenge.

Maybe some pro-bono advocate or an unnamed electronic freedom organization will come along to champion the cause. :) Here’s hoping. That underoos panel still makes me giggle.

What’s the current status of public domain in the US? How long after a given panel was created does it enter the PD? Or does that apply? What about the doctrine of first sale? If someone HAD the books and decided to do this? Would it be an issue?

Why do I think about these things at 6am on a Saturday. Before coffee.