So word is getting around that Jan Animations received a C&D from Hasbro. A lot of you may be familiar with their work, since that was the channel that brought us “Meet the Bronies” and the “Adventures of Button Mash”.
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I thought I’d throw some analysis at this, but first of all I would like to offer some thanks to Jan Animations for posting the C&D order for others to read. If you’ve followed any of our ruminations regarding copyright law and parodies, you’ll know we’ve spent some time wringing our hands in worry over what it might look like if we ever got such a notice. I have to say, I expected some threats, ultimatums, and legal blustering, but it does actually look fairly cordial.
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But there’s one factor in this that I worry about more than anything, and it has more to do with the use of OCs.
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First of all, it’s important to understand the distinctive parts of the law involved in this case. The copyright aspects are a lesser thing – Jan Animations was making their own cartoons on their own time, so they aren’t guilty of distributing copyright content illegally. Where the big issue lies is with trademarks.
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As I understand, Jan Animations did two things wrong. The first is that they used the Cutie Mark Crusaders in their logo. Since Jan Animations doesn’t own those characters, that can be trouble. He’s essentially associating those trademarks to his own brand, and trademarks can be lost when that happens. Now – is it likely that Jan Animations could take over the trademarks of the Cutie Mark Crusaders? Maybe. It’s not terribly likely, though.
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However, where there’s probably some real concern is how few people realize that Button Mash is actually a My Little Pony character from the actual show. In fact, when I told Kenza the news, the first thing she asked was, “Would it be okay if they kept doing episodes about Button Mash without the CMC, since he’s their original character?”
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Tons of people have been asking this question. As far as trademarks go, that’s kind of the problem. I do not know if Hasbro actually has a trademark on Button Mash. The rules as they’ve been explained to me are complicated, but I doubt they’ve filed any official paperwork on him. That doesn’t mean they don’t have a trademark – trademarks can be held implicitly too. But here’s the thing – if Jan Animations fleshes out Button and makes him their own character, who owns Button? The company it started from as a background character, or the company who made a broader use of him, while many people now recognize Button as the second company’s original character? Well, a question like this is what court is for.
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So there may be a couple of elements here. Hasbro may recognize that Button is their character, but most people haven’t. If he became Jan Animation’s trademarked character, it would actually wind up illegal for Hasbro to make toys or do anything with him unless they got permission from Jan Animations. That sort of thing could result in a potential loss of millions of dollars for Hasbro, and you can imagine that heads would roll at the company if that came to pass. So it’s not a good situation, and it’s built around a lot of uncertain potentials.
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There’s no case of fair use here, for those who have been saying that. Using comedy characters strictly for comedy isn’t covered – you do need to be making some form of commentary or criticism related to the characters or works that they’re in for a claim of fair use to pass. Aside from that, Button Mash’s use did certainly serve to confuse some people about where the character came from. Not only that, but since Jan Animation had help from John de Lancie and Tara Strong in one of the projects, it would also be hard to tell whether or not they were endorsed by Hasbro as they made their pony videos, which increases confusion with branding and trademarks.
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So that’s why it happened, as I can grasp the situation. It’s not a happy thing, but as the law lays out, I think that’s it. Now, that said, it’s important to understand that outrage towards Hasbro over this actually won’t get anyone anywhere. Copyright bullying does occur, but this is not copyright bullying, so it’s not going to go away from people shouting it down.
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However, Jan Animation has some great chops as far as their animations go. They’re dead on accurate in the way they design and animate their characters, and they’re a great studio on that front. If you guys want to support them, I think the best thing at this point would be to do so constructively. It’s up to Jan Animations to decide what they want to do next, but if they have fans throwing public support behind them, then maybe they can get a license and work on similar projects going forward, if they’d like. It’s hard to say the best thing to do when it comes to independent art things.
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But regardless of what happens, I hope it all works out for Jan Animations’ team. It’s a scary world being one of the little guys.I think this is the best way of putting it.
I had a hunch that brand confusion likely was a contributing factor, but without any explicit reason it’s hard to say specifically.
I never cared for Button Adventures myself but it still sucks that it happened. Props to the guys at fimflam for usually having a better assessment of what’s up than most.