Well, now we know why sonofstuckfunky.wordpress.com (and stuckfunky.wordpress.com) got the plug pulled. Here is the letter that Batiuk’s lawyers sent to the WordPress.com folks. They are not happy with the “unauthorized use of the Funky Winkerbean name, trademark, or comic strips” on the site. They go on to ask the WordPress people to provide them with my name, address, and email address.
I’m still reeling from having the plug pulled, then was feeling great about being able to move the blog so quickly. Now I’m feeling pretty anxious. I don’t have a lawyer, I (obviously) don’t have a deep knowledge of copyright, and really don’t need to get sued.
This turn of events ought to tell you everything you need to know about Tom Batiuk’s sense of humor.
I will collect my thoughts and decide on the course of action going forward. In the meantime, thank you, friends, for your support.
0 responses to “Cease and Desist”
I knew it.
TB has been reading our snarks all along.
quarter inch from reality my ass
This does not set a good precedent for comic snark sites. Can the Comics Curmudgeon be far behind? Hasn’t WordPress heard of fair use?
He should consider himself fortunate that ANYONE reads his awful, depressing “comic” strip at all. The various comic snark blogs and sites probably account for more readers than any of these comic “writers” would ever dare admit. How anyone actually makes a real living from comic strips anymore is a total mystery to me. If you gathered together 1,000 random American newspaper readers I’d wager that 998 of them have no clue as to what FW is and have never even considered reading it.
Good luck & hope you stick around. Not you though, TB, your strip is as obsolete and played-out as the tired gags you endlessly recycle.
Check out the Electronic Frontier Foundation – http://www.eff.org
There’s a lot of information on copyright law, including a page devoted to blogger’s rights (https://www.eff.org/issues/bloggers), and they may be able to provide legal advice or assistance. They live for battles like this.
We’re behind you on this. Your team will not quit on you.
I don;t think he can stop anything but the use of the strip itself. Has he ever heard of “parody?”. Of course not. What a dick. He cannot stop people from using the name FunkyWinkerbean – there is no copyright available in a title alone. He cannot stop people from discussing his “writing”, or discussing his characters and their actions. About all he can do is stop the reproduction of the comic strip. Copyright is all about unauthorized reproduction of the expression of his FW idea. We can do parodies all day long. That’s the way I see it without further research. This aggression shall not stand, man.
Regarding the so-called “trademark” issues, what trademarks does he have? I’ve never seen any notice attached to the strip. A quick search of TN records reveals on registration for “Funky Winkerbean” (R/N 0968666) used for comic strips. Nothing else. One thing he cannot stop is truthful use of the mark – like “Hey, gang, I just read Funky Winkerbean” or “You can find Funky Winkerbean comic strips in the Raleigh newspaper!” Also he never that I have seen ever used the mark properly -as an adjective to describe his goods “comic strips” – which is not worth a lot here. Point being is that there is No trademark violation going on and without the reporduction of the strip there is no arguable copyright infringement going on, either.
Not TN records, that’s implies Tennessee. I meant the US Trademark Office (TM Office ) records.
Love the brick wall header LOL. Yeah, I mean what if you merely link to an “authorized” site that displays “FW” instead of posting the strip? He can’t prevent anyone from commenting or goofing on it.
Of course it could be that Batiuk wasn’t upset by the use of his strip’s name or character(s)’s names…mighta been that tendency to get a new asshole ripped on a regular basis, which some of us might have done – unintentionally, of course…
Then again, maybe he’s pissed because (ahem) somebody figured out The Grand Finale, and spoiled the surprise…the only question is, which surprised him (and pissed him off) the most – that somebody got it right on TGF, that that many people read his strip and actually absorb it enough to comment, or that anybody gives a rat’s ass about his strip in the first place.
BTW – if you need a new name, you have my permission to use, with absolutely no fear of reprisal on my part, a name I used to call this strip when it first appeared – Winky Fuckaduck.
I’m dying to know if the legal secretary who had to type this up was able to do so without chuckling quietly to themselves. He/she must have been thinking, “That’s strip’s still in print?” (Just kidding, don’t sue me!)
Reproducing some comic for commentary or parody is fine, the way e.g. Comics Curmudgeon does, but there are limits. The problem here is that too many published strips are being reproduced, which is a pretty clear copyright violation.
I’d suggest limiting the blog to just the commentary, or perhaps with links to a legit site where the comics can be found, otherwise you or your ISP will probably get a similar letter for this site soon rather than later. Just my non-lawyer advice.
Meanwhile, I await my own letter:
“Dear Sgt. Saunders – We represent Droopy Dog with respect to all his intellectual proparty affairs and your associating him with Punky Legalbean has infringed on his myriad publicity rights….”
I mean it’s obviously about money: anything involving a lawyer usually is. Newspapers pay whoever syndicates “FW” so by posting the strip without permission you’re giving away the milk from TB’s cow for free. I can’t imagine why linking to the strip elsewhere would be a problem for anyone, legally or otherwise. It would actually drive more traffic towards the “legit” site which would presumably be a good thing on their end. If you’re forced to change the site’s name, may I suggest Cancer Cancerbean? Dreary Deathbean? Miserable Morbidbean? That Comic Strip That Sucks Real Hard?
It’ll be interesting to see if he goes after any other parody/snark sites. If it’s just confined to SOSF, you know it has to be “personal”. Maybe one of those Photoshop spoofs set him off. Or maybe we’re simply not treating FW with the gravity and respect it’s earned over the years by killing and maiming those poor, miserable characters.
Jeffcoat: that was too funny. I was thinking the same thing. “What the hell is a Funky Winkerbean???”
Now you have to wonder would they be doing the same thing if this blog was about how wonderful the strip was and how moving Lisa’s story was. it seems Batiuk has a skin as thin as his self impressed alter ego Les.
From the U.S. legal code on Copyright:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I don’t believe you’ve done anything wrong here, even reproducing every day’s strip. On the other hand, I am not a lawyer. It’s probably a good idea to contact an attorney with some expertise in Intellectual Property law. I would be happy to contribute to a SoSF legal fund.
Also, I can’t recall every seeing any advertisements on your site, so I think it’s probably safe to say that you’ve never made a dime from this. That fact will also work in your favor.
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”
How about therapeutic purposes? It’s good for my mental health to know there are folks as disgusted as I am by FW’s content, but can’t look away.
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; ”
This provision provides the spanner in the works for a fair use defense. Remember, too, that fair use is an affirmative defense – stating effectively that yes, I copied the work, but I was allowed to by the fair use portion of the statute. Here, each strip could be considered a “work”, although I would argue that the ” work” was the entire body of FW strips, effectively telling a single story over many chapters. But if you presume each strip to be a work, then 100% of the work is taken which could erode the fair use position. On the other hand, the work is incredibly short and has very little substantive content, so it is almost a requirement to use each day’s strip in its entirety to effectively provide criticism and comment.
The trademark charges are complete bullshit. The only thing he’s got is the reproduction of the strips and I do think fair use applies here.
Maybe the photoshops did drive him over the edge, but I think this has been in the works for a while. It wasn’t a sudden decision by TB to go after the SF franchise. Note that they sent the NastyGram on a Friday – designed to screw up the weekend of those affected. Buncha piss-ants.
For the curious and others of interest in the Issues.
Maybe this will inspire a new FW story arc. A group of cold-hearted, crude, thoughtless goons (perhaps the bunch at Radio Ron’s Morning Zoo or whatever they’re called) start ragging on “Lisa’s Story” for laughs, prompting a Spanky mega-tantrum. Les is hilarious when he’s in Angry Author mode, plus TB would have yet another opportunity to trot Lisa’s corpse out again. It’s overdue, Lisa hasn’t been seen since way back on New Year’s Eve and what’s FW without Zombie Lisa?
Seriously though, if you remove his copyrighted content from the site and just link to the daily strip, there’s nothing more he can do. He doesn’t own the word “funky” and anyone is free to critique his work whenever they feel like it. As long as there’s no copyrighted material, it’s no different than any other unauthorized fan (lol) site. It was a real dickish move sending the lawyers after you, though. He (or his agent or whoever) could have tried asking you directly first. It’s not as if it’s a for-profit site flagrantly trying to make a buck off someone else’s work.
First of all: you people are the absolute best. I’ve said it before and I’ll say it again. Thank you. Especially for doing my legal legwork involving fair use. I will start linking to the strip on a legit comics site if that’s what the problem is. As far as the rights to the name: there is a pub in Vancouver called Funky Winker Bean’s, for fuck’s sake. A drinking establishment bearing the name of Batiuk’s alcoholic leading man. Maybe the space between “Winker” and “Bean’s” is what keeps them on the right side of the law.
I have mentioned in these pages my grudging admiration for Tom Batiuk: the good that he’s accomplished in raising bucks for cancer research; the fact that, regardless of what we think of his work, he loves what he does, he has his fans, and he makes some serious coin doing it; I even said that in an interview he sounded like kind of a nice guy. I’ve wondered, too, if he’s aware of how his work is received by more critical types, and if he knew about this blog and the snarker community. Well, I got my answer. Welcome to chapter one of Son of Stuck Funky’s Story: The Gloves Come Off…
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Hey, here’s an online comic book about fair use!
Now my head hurts.
That comic’s a pisser! Thanks Unk.
TB is a humorless turd, and I will say that to his face if I ever get the chance.
Jeez, Batuik, if you can’t laugh at yourself, who can you laugh at?
Every single person who puts themselves out there in the public arena is inevitably going to be analyzed and criticized-that’s the nature of the beast.
I guess TB has never heard the infamous quote by Abe Lincoln, or he’s ignoring the truth.
SOSF, glad you got your site up and running again.
Go to Hell, Batiuk.
Count the internet as another thing he does wrong. Hasn’t this prick ever heard of the Streisand Effect??
There’s a good chance this actually originates with King Features Syndicate (who owns the syndication rights to FW) and not with Batiuk. They’re kinda notorious for this sort of BS.
I wonder how many FW fan-sites he’s sued for posting comics without permission?
The “Mary Worth & Me” blog just uses one or two panels from the strip; not sure if that makes any difference.
TB is an imbecile; he should be on his knees thanking Jehovah that anyone even gives a shit about his awful, awful comic strip…
I think in a way SoSF is a “fan site”, if the definition of a “fan” is someone who reads the comic every day, and who knows all the characters and their backstories. Of course, we have a great time making fun of Funky, but most of the regulars on this blog have been reading this comic for a very long time.
My guess is King Syndicate prodded Batiuk into this, but I also get that it didn’t take much. His ego is wrapped up in the strip, and we beat him up every day. But hey, he deserves it.
If the Streisand Effect kicks in, King’s clients should be happy, as their increased readership justifies advertising rate hikes, and King itself, for justifying fee hikes.
But I’m not holding my breath waiting…
You know TF, working on my twilight comic, I have an actual caricature of the author of the book series as a main character. I changed names of course, but expressed ambivalence at the risk of provoking a lawsuit. I told this to a friend of mine, who responded, “You better HOPE she sues you! You have NOTHING. She has MILLIONS of dollars. This would be absolutely fantastic publicity for your work, and in the end, there’s nothing really she can take from you.”
It’s true, I’m dirt poor, and all I have is my work and the internet to propel my presence.
I would be BRAGGING about the C&D. You should post it on a separate page or something, with the tagline “This blog is read by the Great One himself!”
Took a few days to find you all! Glad you’re back TF!
Frankly, I’m pissed. Of all the childish things for that two bit “writer” and self-deluded “artist” to come up with as a consequence of taking a few well deserved critiques and jibs, this one takes the cake.
“My guess is King Syndicate prodded Batiuk into this, but I also get that it didn’t take much.”
I think you’re on to something OBD. I can see a few thin skinned editorial types laughing along with the rest of us until they were themselves criticized, but really guys, try doing a little, just a little editorial work on that Winky Fuckaduck strip. If you did, maybe you’re feelings would get so hurt by honest reactions to crap laden drivel.
Backache and Co. would be well served by a reminder that publicity, any publicity, is priceless. Or maybe that’s what this is all really about…
Parody is protected under freedom of the press. Just look at MAD magazine.
“The first three issues did not sell particularly well, but #4 clicked with a wider audience. That issue featured Mad’s first parody of a specific character; “Superduperman!” sent up, of course, DC’s premiere superhero. DC comics|DC threatened to sue; [Harvey] Kurtzman argued that parody was protected by the American Constitution. The case never came to court, however. Gaines simply ignored the objection, DC never bothered to push the matter, and Mad thereafter zeroed in on identifiable characters. ”
Just heard of your site and the recent kurfuffle you’ve had over “Funky Winkerbean,” and thought I would give you the benefit of my firsthand experience with this sort of thing. (I once was threatened with a lawsuit by Chicken Soup for the Soul Enterprises for spoofing their material in “Chicken Soup for the Soulless” at BrothersGrinn.com.)
First, like everyone else has said, fair use allows you to parody “Funky Winkerbean,” and even occasionally to reproduce the strips for purposes of commentary. Ultimately, though, lawyers don’t care about that. They will sue or threaten to sue in order to get your stuff taken down. Part of this may be pettiness, but a lot of is also an effort to protect their client’s copyright. If creators can’t show that they have vigorously protected their copyright, they can lose it. So, while they might not actually have a case, a comics syndicate can afford to take this to court. Chances are, you can’t; and your ISP doesn’t make enough money from your subscription to justify their legal expenses.
When this happened to us with Brothers Grinn, contacted area newspapers, who love a “David and Goliath” story, and let them cover the story. We ended up being written about in the Wall Street Journal, on About.com, and a few other periodicals. We’d been given two weeks to comply with their request, and at the end of the two weeks, I called them up and we worked the whole thing out. We got to continue writing “Chicken Soup for the Soulless,” and got two copies of the letter on their official stationery for souvenirs. All we had to do was to state explicitly that we were not connected with them in any way, and that our work was a parody.
If you have trouble now that you’ve moved to this site, consider going public with the controversy and see if you can’t generate some broader support. You might even find that Batiuk is a decent guy who enjoys your site. (We found out that the Chicken Soup people loved ours.)
Anyway, good luck.
Hey Marauder, thanks for sharing your experience!
Batiuk’s lawyers haven’t contact me directly (yet!). The letter reproduced above was sent to WordPress.com. They sent it along to me as a PDF when I inquired why the blog was disabled.
I think the issue was with reproducing the strip daily, so I’ve regretfully discontinued that practice. The upside in all this was that I heard from a lot of people who read SoSF, either by email or in mentions on similar sites. More than one person pointed out that if anything, this blog gives people a reason to read Funky Winkerbean. I am certainly not making a profit off Batiuk’s work; in fact, now I have to pay to host this site and had to shell out for a domain (actually, a reader sent a donation to cover the domain registration, thanks man).
You might even find that Batiuk is a decent guy who enjoys your site.
You know, I’ve tried to be nice, but this legal action has erased any goodwill I’ve had towards him. Not saying he isn’t a decent guy, but he could have emailed me and I would have at least stopped reproducing the comic strips here. Instead, he puts pressure on WordPress, and they cut me and the whole community loose. Hey: we survived.
Here’s what I said about FUNKY on my blog when reviewing the year in comics:
“FUNKY WINKERBEAN: The single most depressing comic strip ever published. Once a delightful teen comedy strip, people read it now to see how much deeper the Funkiverse can plumb the depths of bathos. Why? Because it’s like one of those YouTube do-it-yourself cyst removals using a kitchen knife: It’s repulsive, repugnant & horrifying…but you can’t turn your eyes away. If you haven’t started reading it yet, don’t. ”
Buzz, thanks for checking in! I’m adding you to the blogroll. And: I’m 100% with you on Get Fuzzy.
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