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Condemned to Hell!
In the Spring of 2000, the British Tomato Association suggested growers might try the ancient Chinese art of feng shui to increase their yields, and I wrote that up for the newsletter, and chuckled at two growers’ reaction in the April 23, 2000, edition of True.
One reader, “Santa,” was particularly peeved at the story and told me I was “going to hell” for “blasphemy.” When True’s consulting Methodist Minister told “Santa” he had liked the story too, she also condemned him to hell!
So I got the idea to respond with a “Get Out of Hell Free” card, a parody on the “Get Out of Jail Free” cards in the MONOPOLY® board game. I also offered them to readers for the cost of printing, shipping and handling.
Readers Absolutely Love the Cards. Hasbro Doesn’t.
Our more rational readers immediately got the joke and thought the cards were great. Thanks to the “at-cost” price, they bought lots of them to give to friends. If that were the end of the story, this would only be about a “viral marketing” publicity stunt that worked nicely to bring This is True to a new audience — the people readers gave the cards to.
But Hasbro, which owns the MONOPOLY® board game, couldn’t see the humor in it and sent their lawyers off to demand an end to the GOOHF card.
Hasbro’s lawyers, the Manhattan law firm of Patterson, Belknap, Webb & Tyler, wrote me a “cease and desist” letter, allegedly sending it by Certified Mail on July 25, 2000. I say “allegedly” on that date because they apparently didn’t put proper postage on it, and it arrived several dollars postage due. We decided that to pay several dollars to receive a Certified letter from a law firm was a bit too much to ask of anyone, so we refused to pay the postage due and it was returned to them.
So just how anxious was Hasbro to get their complaint heard? We heard nothing from their lawyers until they sent the text of the letter via email to our Internic contact address on September 27 — two full months later! We of course didn’t know what was in the letter we had refused until then, when we put the two incidents together.
The letter alleges first that the card “creat[es] a likelihood of confusion with respect to Hasbro’s authorization or sponsorship of or association with your commercial activities.” We think it’s unlikely that anyone viewing an obvious parody would seriously think it was “authorized” or “sponsored” by Hasbro. But, to make it clear, I posted a clear disclaimer in the caption of every image of the card on this site, as well as updated the design of the card itself to include a disclaimer.
In addition, the letter shows Hasbro’s attorney did read my clear statement that the card was a parody under copyright laws (see links at the end): she countered with some case law of her own. I’m proud to see I forced them to do some homework.
The gist of their argument was that the card represents a parody not of MONOPOLY®, but of something else, so therefore it is not allowed under the law.
Hello? The card is not an obvious parody of MONOPOLY®?! (OK, OK, we know: nothing is “obvious” in law! And yes, we understand their technical legal ploy.) So fine: we added a lengthy explanation as to why we picked a MONOPOLY® card to parody, rather than (say) Tiddley Winks (which, we suppose, is a registered trademark of someone.) That’s the paragraph on the “GOOHF” page — see links below — that starts “But why a parody of the MONOPOLY® card, as opposed to something else?”
I Have Lawyers Too
Although Hasbro’s lawyers have only managed to deliver an email letter, I turned it over to my Intellectual Property attorney for response within the 10 days requested by Hasbro’s letter.
But even before that letter had a chance to go in the mail, I immediately responded in good faith to Hasbro’s stated (and truly not-all-that unreasonable, really) concerns: I have made the reasons for the parody more obvious, and have added a clear disclaimer that Hasbro has nothing to do with True’s cards. In addition, in order to “get the word out” about those two items in a clear way to True’s readers, I published both of those items in both email editions (free and paid) of This is True.
Since I haven’t heard from Hasbro since October 2000, my lawyer and I believe we have satisfied Hasbro’s objections. My attorney, who is very experienced in matters relating to Intellectual Property (especially copyright and trademark law), says that if this went through the legal system, we would likely win. So we are still making the cards available to readers. Should I hear more from Hasbro, I will alert you to updates in This is True (subscription info below). Previous updates are at the end of the page.
Related Links on This Site
- The whole story on me being condemned to hell. Includes the original feng shui story and the reactions readers had to it.
- The popularity of the GOOHF cards — including some truly entertaining reader letters about the cards.
- Details on what is allowed regarding parody, per U.S. statutory and case law, and why I felt comfortable going up against a huge corporation with my parody. (As noted, this page went up long before I heard from Hasbro; it is not new.)
- The GOOHF cards were featured in the October 2000 issue of Playboy magazine.
November 2000 Update
A lot of readers have expressed support. Thank you for that! Many have asked if they should start a boycott, or write letters to Hasbro. My opinion: No — Hasbro has done what it felt it had to do to protect its rights, and I do not fault them for this.
That is, in part, why I immediately (without waiting the 10 days they gave) responded to their main concerns by adding a disclaimer and by more clearly explaining why the GOOHF card is in fact a direct parody of MONOPOLY®. I believe that should be the end of it.
Because I feel that Hasbro was within its rights to receive such a disclaimer and explanation, I do not support a boycott against their products, and I am not asking that you write to them with your displeasure. Of course what you do is up to you, but I do not feel such actions are necessary at this time. I will, of course, reevaluate this stance should Hasbro not be satisfied with my quick and good-faith response. Please stay tuned to True for updates.
Other readers have asked where they can contribute to a legal defense fund to help with legal costs. I do not have a legal defense fund and am not soliciting donations to help with legal costs, which are (so far) quite minimal. I thank you for your generous offers and support.
April 2001 Update
Hasbro has backed off — they apparently got smart, realizing that a call for a boycott just before Christmas would have been heeded and spread by True’s huge audience — and that I would have received incredible publicity over it, further damaging their bottom line over an obvious joke. Indeed, the joke would have been on them. Here’s what my new copyright attorney says about that aspect:
The thing is, Hasbro’s counsel should have sniffed that they had a potential public relations fiasco on their hands with you much earlier. Assume I don’t know anything about you. Pulling your web site up, the first thing that greets you is a quote from the New York Times. Right on the side: a link about press coverage. Copyright and trademark notices, including proper symbol usage and a claim to a registered mark (which a minute and a half’s effort could verify unless the registration is very recent). Thirty seconds of effort tells me you have media access and probably a following. Plus, you either have an attorney, or are much more cluefull about Intellectual Property than the vast majority. Click on “Contacting Us” produces what looks like real information (i.e. not hiding), including a phone number. I’d’ve recommended to Hasbro that their opening salvo be a phone call from some vice president type at the company — not a lawyer — and then see how you respond. A response showing concern and willingness to discuss should produce a response in kind. No ruined holiday sales [from Boycotts]. Two fifteen minute phone calls at an attorney’s rate, no time drafting cease and desist letters, planning further strategy, or discussing spin control. When I advise clients in such situations, I tell them that they have to assume that any letter I write will be posted on line — with all the public relations consequences.
It’s that kind of common sense approach, of course, that led me to hire him in the first place. My kind of lawyer….
February 2009(!!) Update
A law firm that sends demand letters postage due has already demonstrated its level of competence, but here it is, nine years later, and I just got another nasty cease & desist letter from them.
Hello?! They didn’t check their own files and see that Hasbro clearly decided not to move forward against me many years ago? There’s such confusion and damage over the 1.5 million cards in circulation that they waited nine years to do something about it?!
No, I don’t buy that either. More like the economy is getting rough, and therefore it’s a case of “let’s see where we can squeeze out a few more bucks” by trying to shake down anyone they can.
Today’s letter notes:
We recently became aware that you are offering for sale “Last Chance – Get Out of Hell Free” cards and stickers on your website at www.goofh.com [sic] that depict the famous MR. MONOPOLY® character and are obviously derived from the MONOPOLY® “Chance” card.
“Recently”? Is July of 2000 “recent”? But I digress. The letter continues:
The MR. MONOPOLY® character is the copyrighted property of Hasbro, and also has source-identifying significance as a trademark. Your unauthorized copying of the MR. MONOPOLY® character constitutes copyright infringement … and also violates the federal trademark laws … by creating a likelihood of confusion with respect to Hasbro’s authorization or sponsorship of or association with your activities. Your unauthorized use of the MR. MONOPOLY® character is also likely to dilute its distinctive quality and hamper its ability to function as a source-identifying [trademark]….
We therefore demand that you immediately cease and desist from any further use of the MR. MONOPOLY® character, remove the cards and stickers from your website, and provide us with a written assurance that in the future you will refrain from any further unauthorized use of the elements and characters of the MONOPOLY® property trading game.
Fairly boring and typical C&D language, as I talked about even before receiving Hasbro’s first nastygram — which text they mentioned in their 2000 letter. But here’s the part of the new letter that I really enjoyed:
To assist Hasbro in determining the harm that has been, [sic] we demand that you furnish us with information concerning the length of time that you have sold the infringing cards and stickers, the number of units that have been sold, and the total revenue you have received to date. We will then be in a position to discuss monetary compensation for your unauthorized use.
As I mentioned, my response in 2000 was “no” — and they definitely knew I was selling the cards at that time. The response in February 2009: “Hell no.” And Hasbro’s attorneys can consider their cards stamped “VOID”.
2 March 2009 Update
In a bit of delicious timing, this morning’s Wall Street Journal had an article about the “Bunker Mentality” some people are dealing with during the economic downturn. How did they choose to illustrate the concept? With good ol’ Rich Uncle Pennybags, holed up in his bunker eating out of tin cans, his useless chest of money cast aside:
So now Hasbro’s lawyers get to turn their attention to someone with very deep pockets: Rupert Murdoch. It must really suck to be Hasbro right now.
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30 Comments on “What the HELL?!!?”
Oh, goody! We haven’t hassled Hasbro in simply AGES! 🙂 Yes, I realize they’re hassling you, Randy, but that table turns quickly. I look forward to tracking this one and will definitely ReTweet your bulletin about it. You need some sort of instant Tweet-maker on this blog page.
Up the mindless, Borg-like corporate legal department’s pretty pink rosebud!
Well yeah the tables turn quickly! That’s what this update is all about. 😀
As for an instant Tweet-maker, good idea. Done! -rc
I’m plainly amazed at their laziness. Calculate the monetary part, so we can then demand it all from you. As I recall, isn’t the burden of proof upon the PLAINTIFF? These guys rank right in there with the spam artists and phishing sites.
No, don’t bother hassling Hasbro – they’re actually pretty nice guys for a Corporate Giant. (I lost game pieces from one of their products when I was teaching, contacted them to BUY replacements, and they mailed me replacements and coupons for free games later the same week.) The people in need of a thrashing are lawyers on a “fishing expedition”. Some of them seem to think folks will be intimidated by getting a letter with a law office return address and/or letterhead into doing whatever they’re told. (Some collection agencies try the same tactics, by the way…) I have personally gotten two attempts to collect on credit accounts which were canceled over 15 years before.
So, some JDs don’t need to get law licenses, they need fishing permits. Fishing permits expire annually, and they’re easier to revoke…
I agree that it’s the lawyers doing this; Hasbro may not even be aware of this particular hassle. That said, they have been very aggressive in the past with no leg to stand on, such as their fight with Clue Computing (who is also based in Colorado) over that company’s audacity to register Clue.com for their web site. Hasbro lost that fight too. -rc
Have you considered the possibility that this might just be a scam? From the postage due mailing to the typos in the letter, to asking *you* to calculate damage, this smacks of some lazy scammer trying to get money from you–not a legitimate law firm.
Interesting thought, but I’m pretty confident that it’s real. -rc
Years ago my son told me there are a lot of really stupid people in this world. I really didn’t believe that and felt my family of average intelligence and common sense. The older I get the more I believe. It is obvious that getting a law degree does not necessarily mean you have intelligence AND common sense. I am feeling smarter by the year!!!
At first I thought it odd that Hasbro’s lawyer’s letter/s referred to MR. MONOPOLY(r), considering throughout my entire life I was under the impression the character’s name was Rich Uncle Pennybags, but apparently Hasbro did change his name to Mr. Monopoly in 1999. Interesting timing, considering their initial C&D attempt came around the same time as the name shift.
Some decades ago (I should probably Google this but it’s late and I’m lazy), somebody produced a pseudo-product called “Road Kill Helper.” (It may have been connected with a joint in a town in Colorado called the Road Kill Cafe, but that’s conjecture — and a digression.) They were successfully sued by General Mills, makers of Hamburger Helper and other mouth-watering delicacies.
What baffles me is: Satire has long been recognized as fair use of copyrighted works. Is it the case, then, that that does not apply to trademarks? Same USG office…
Totally different government office. Copyrights are administered by the Library of Congress, Trademarks by the U.S. Patent and Trademark Office. But indeed parody is a recognized defense against both copyright and trademark infringement on First Amendment grounds. -rc
Are you absolutely certain this is the same law firm and not someone posing as Hasbro attorneys? It really seems sketchy to me some of the wording of the letter.
Absolutely certain, no. Reasonably sure, yes. -rc
Surely a case of “I refer you to the answer given in the case of Arkell Vs. Pressdram”?
The case — from Britain — doesn’t reply, but the case citation generally itself means “fuck off” among those in the know in the UK. (more info) -rc
It seems to me that these lawyers are actually hoping that you will post these proceedings online. Remember the old hollywood adage–“there’s no such thing as bad publicity”? I may not be the most up to date person on popular culture, but with Playstation3 and Wii being the hottest thing game-wise, perhaps they are craving public attention for their company?
Just a side note–how about sending a “void” version to all the members of congress for the ‘lovely’ job they are doing?
Now let’s be fair, Randy. I live in Pawtucket, Rhode Island, the home of Hasbro, and the economy has hit them hard. In fact, according to the magazine Rhode Island Monthly, Hasbro’s CEO, Brian Goldner, received only $2.25 million in total compensation last year.
Week after week you put out This is True and sell your GOOHF cards, raking in the dough, seriously dampening Hasbro’s profits and causing Mr. Goldner to have to scrape by at such a pathetically low compensation. Have you no shame?
Ahh, I love Rhode Island, the smallest state in the Union, where the thinking is even smaller…
This will be interesting. But I’ve always disagreed with Randy about his use of the copyrighted Mr. Monopoly (formerly known as Rich Uncle Pennybags).
Randy says since it is parody, that makes it OK to take someone else’s copyrighted art and use it on your own product which you sell.
Could I make a Get Out Of Jail Free card and use Mickey Mouse or Donald Duck on the card and sell these cards? Of course not, Disney would be all over me in a heartbeat. What if I created a fishing parody card and used the Nemo character’s photo? I have a feeling the people at Pixar (also Disney) would disagree.
Sorry Randy, I have a feeling you are going to lose this round. You have taken a well known copyrighted image and used it as the basis for a business model that is currently in its ninth successful year – the GOOHF cards would *not* sell as well without the unauthorized use of Mr. Monopoly, so you are taking the copyrighted work of others and using it for your benefit – without authorization from, or compensation to, the copyright owner.
I hope I am wrong and you are able to sell the GOOHF cards for another nine years.
Of course you’re wrong! You haven’t looked into what “parody” is. Read the article I wrote about it that I linked to from this page — — for some information. Both copyright and trademark laws specifically provide openings for the purpose of parody. -rc
I have a GOOHF sticker on my dashboard and have distributed dozens of cards. Love ’em! My 7-y-o twins asked who the fat guy pictured on the card is, so I told them all about playing Monopoly when I was a their age, and how my brother used to let me rot in jail while all the older kids scooped up the hotels and railroads. Now, a new generation of our family is enjoying the classic board game. They do know the doggie is Mom’s! So, to the anal-retentive legal department of Hasbro, lighten up and thank Randy et al for the free publicity!
So, that’s where that little guy’s from. I thought he looked familiar. In the capitalistic spirit, You should be demanding payment from Hasbro for the free advertisement. I should think that GOOHF is much more recognized around the world than MR. Monopoly. Who is representing Hasbro? Dewey, Cheatum & Howe? Give ’em Hell Randy!
I appreciate the vote, but I do believe Uncle Pennybags is better known than the GOOHF card. -rc
I refuse to think of the character as “Mr Monopoly.” He’ll always be Rich Uncle Pennybags to me.
In this case, I particularly like the audacity they have to ask you to do their discovery for them. Then again, there are probably a number of people who would give them the information they want without much reflection, too.
In addition to a Twitter link, you should add a Facebook link, too.
There is a Facebook GOOHF page, here. -rc
Randy, did you “goofh”, or did they (and you didn’t notice so that you could “[sic]” ’em up)?
The Hasbro attorney put it in as goofh when it should have been goohf. I didn’t notice it until I was sending out the Friday issue, and the approval copy displayed it as a link. So I fixed it for the issue so people wouldn’t click it and get to the wrong site, and just now linked it to the correct site, and put in a hover comment as an effective “sic”. -rc
If Hasbro were smart (…and at times, its management HAS shown a great deal of smarts…) it would offer Randy a deal to license the character for a nominal amount to be donated to an appropriate charity.
That way, everybody gets good publicity, Hasbro preserves its claim to the character. While I’m confident Randy & his lawyer have their law of parody claim down tight, I understand Hasbro might want to tightly protect the borders of its possessions.
I’d love to see Randy & Hasbro collaborate on a This Is True game … complete with GOOHF card.
Your suggestion is mature, intelligent, and business-like. It would mean I could take the disclaimer off the card too. It would be interesting to get such a common-sense approach rather than their laughable blustering. -rc
Love the cards. You should have had the “VOID” cover 2/3 of the card when you sent it to Hasbro. The fact that they did not pursue this since April 2001 should probably get this thrown out by any “competent” judge. Plus the fact that it is obviously a parody. I think they may have gotten a new attorney (fresh out of school?) if they expect you to do their discovery process. Keep up the good work.
After reviewing the March 2, 2009 WSJ Market Watch article article “Trading Strategies – Adopting a Bunker Mentality” online myself, I searched the page for any copyright references and didn’t find any. I just had to wonder if WSJ applied for and got permission from Hasbro to use a parody of MR. MONOPOLY® in the illustration accompanying the article, or is Hasbro only hassling you, Randy? I would assume Hasbro would have the same issues with WSJ as they apparently have with you.
BTW I also completely agree with the comment posted by rewinn, Mercer Island on February 28, 2009, and your reply. It really would be a Win-Win solution!
Keep up the great work with This Is True!
Well, big companies and banks have just proved that they seemingly cannot be trusted to earn money by being sensible and thoughtful or we would not have this “economic crisis” on our hands…
This, though, is even worse than building shoddy (meaning ever since the 70s we knew oil was limited, still none of the big manufacturers in the world have real alternatives yet, after more than 30 years since the first oil crisis) cars or losing billions in gambling on the financial markets. I’d imagine you could probably get some very bad publicity going for Hasbro, if you wanted…
To Jim, in TX:
Should all of those musicians who have shamelessly been using unaltered musical notes in what is almost certainly previously used & copyrighted pairs, triplets, quads and more suffer a fate similar to RC’s? I, for one, think so! And, if you will join me, together (along with the firm repping Hasbro) we can rake in grillion$$$ in a class-action-anti-fair-use-non-parody (excluding 2 Live Crew, of course) case.
Looks like Hasbro got a new flock of attorneys and they have, as usual, no clue.
Isn’t there something in the law that says if you have been doing for for a specified period of time and they have not sought legal intervention, they have to shut up?
(Not a lawyer, don’t even play one on TV, but I’m only asking a question here.)
Yes there are, including laches and estoppel. That said, I still believe their rights have not been violated, since it’s such a clear parody. But even if their rights were violated, they have known about it and done nothing for nearly nine years now. -rc
Give ’em hell, Randy!
I thought that to be a parody it had to pick on or comment on the thing being parodied. So this would be a parody (from a copyright standpoint) only if it was picking on monopoly or hasbro wouldn’t it?
I think the comment is reasonably obvious, but for those who don’t “get it”, the explanation has been on the original GOOHF page since 2000. -rc
There is 1 lawyer for every 268 persons in the US. It must be hard to keep them all busy. I expect that why there are so many class action lawsuits and stupid garbage like this.
I seem to recall someone creating an obscene cartoon involving Goofy, Minnie, and/or Mickey, and being successfully sued by Disney because coupling obscenity with those pure-for-children characters was held to diminish their market value. It would seem that parody that could interfere with the income generated by the original is not defensible under the “fair use” exception.
This is the reverse, though; the publicity generated by your parody could be to their advantage. If Hasbro was clever, they’d turn the situation around and use your cards as promotional material to sell more games.
OTOH, that may not be fair use of your parody . . .
Profiting from a parody doesn’t invalidate its fair use defense, but I can see that a court might rule that way in the Disney case: courts don’t have a lot of sympathy for pornographers. -rc
Gary in Oakland is referring to the Air Pirates underground comix case, which is described here: http://en.wikipedia.org/wiki/Air_Pirates
Long, ugly, weird, unclear, and still controversial. One lawyer said the case set back parody law 20 years. And, as Randy has pointed out, uses that are arguably obscene are more likely to lose even if otherwise their “fair use” is on firm legal ground.
Are you ready for a boycott?
Heh! Not yet. Let’s see what they do with my response. They clearly “forgot” (in a corporate sense) that this had already been dealt with years ago. They could still do the right thing. -rc
How about the readers flood Hasbro with emails and letters expressing our outrage at their ‘intimidation’ of the small business man? When Hasbro sees the large audience you reach and their support of you, maybe they will decide it makes good sense to back off.
No, I don’t think harassment is a valid tactic. -rc
Posted by Greg, Lexington, NC on March 14, 2009:
Harassment – that’s a little harsh, don’t you think? I see it more like, “…the teeming masses [exercising their] right of free speech, to express their disapproval.” Calling for a boycott and letter-writing campaign would merely encourage Hasbro to make the decision to stop harassing you “on their own”. Wouldn’t you agree?
Nope. Posting someone’s name and address *invites* harassment. I have little to no doubt it would happen, so encouraging (or enabling) it would make me a party to it. -rc