Monday, July 14, 2008

Satire or Copyright Infringement? DJ Coffman Vs. Scott Kurtz

A recovering Skull shills his book with McPedro --
by DJ Coffman

Ah, the wonders of twitter.

DJ Coffman of HERO BY NIGHT fame, has a 'Will Draw Anything For $2' feature on his blog, where you can find Obama (as Captain America) fighting John McCain (as the Red Skull). You can also find characters like Skull from PVP getting skull-fucked by the Red Skull. Classy, huh?

DJ Coffman considers the whole thing parody and fair use. Something that Scott Kurtz (famous for his Star Wars and comic parodies) doesn't look too favorably on - as he noted on his twitter (listed in reverse reading order here):

pvponline Let me see if I can break it down for you guys: Skull getting eye-fucked=not like. PvP being parodied in Foxtrot with reverence=DO like.
pvponline @djcoffman How noble of you, DJ. You're a real gentleman. about 8 hours ago from twitterrific in reply to djcoffma
pvponline @djcoffman Scott Rosenberg has taught you well. You two so deserved each other. about 8 hours ago from twitterrific in reply to djcoffman
pvponline @djcoffman Where was the satire? Maybe if you understood these things better you would still own Hero by Night. So blow ME. about 8 hours ago from twitterrific in reply to djcoffman
pvponline @djcoffman the Han shirt is commentary and satire (i.e. fair use) DJ. What you did was infringement. my paypal is about 8 hours ago from twitterrific in reply to djcoffman
pvponline @JoshuaJericho DJ's never had a real tight grip on ownership rights. Clearly. about 8 hours ago from web in reply to JoshuaJericho
pvponline @djcoffman and P.S. Since you made 2 bucks off that, you owe me two fucking dollars. about 9 hours ago from twitterrific in reply to djcoffman
pvponline @djcoffman Hey, asshole. I officially do NOT give you permission to draw the red skull fucking my character. take that shit off your website about 9 hours ago from twitterrific in reply to djcoffman

And, of course here are DJs posts:
djcoffman in fact, maybe I'll just start a whole other comic about ways to skullfuck trolls? I've got time
djcoffman any more dicky discussion about the drawing I took down, and I'm going to republish it. Fair warning
djcoffman I haven't had this many laughs on a Sunday since I don't know when. 41 minutes ago from TwitterFox
djcoffman @JTShea No. He's the world's largest hypocrite. Maybe he should remember things from 1999 like this: about 1 hour ago from TwitterFox in reply to JTShea
djcoffman @pvponline I try? about 8 hours ago from TwitterFox in reply to pvponline
djcoffman @pvponline Well, sorry it upset you. You should see the ones I've turned down. There are a lot of people who don't like you. about 8 hours ago from TwitterFox in reply to pvponline
djcoffman @pvponline And if you allow it to run on your forums I'm going to re-publish it on my site. Just a heads up. about 8 hours ago from TwitterFox in reply to pvponline
djcoffman @pvponline Of course ,I'm sorry that type of humor upsets you. I understand. Now drop it and move on. about 8 hours ago from TwitterFox in reply to pvponline
djcoffman @pvponline No, that was "dark satire" you twit. RedSkull, fucking skull, and he also requested any other skulls I could throw in. So blow me about 8 hours ago from TwitterFox in reply to pvponline

So what do you think -- was the Skull/Red Skull cartoon Coffman drew satire and fair use, as much as any parody using copyrighted characters would be? Or is this a special case?


  1. Oh gods, here we go again. More webcomics dramas.

    I can certainly understand Kurtz's frustration (wonder if he'd feel differently if Skull was the fucker, not fuckee).

    However, as tasteless as it might be, it's certainly strikes me as satire. Kurtz throws in references to other franchises all the time. This is no different. It's certainly fucked up, but it's satire all the same.

  2. I don't think anyone would consider Skull a public figure to be satirized or parodied as in the case of Hustler v. Falwell.

    Also that skull on skull strip wasn't a commentary in any form on PvP or Skull. It was a commissioned work. DJ Coffman was paid money for it as well.

  3. Let's be fair. He was paid $2. I doubt he's making a big amount of money.

    As for the idea that Skrull isn't "big" enough to be considered a target for parody...sure he is. He's the iconic character of a really good-selling Image book (at one point, I think only the Kirkman books and Spawn were outselling him, though I'm sure that's no longer the case).

    Now this particular image...might not be parody. There's nothing being parodied here. The image of the Red Skull doing it to Skull eyeball-style might be considered some sort of parody (I haven't seen it); this is just two webcomics characters in a single panel. There's no joke, no message, just two characters. As such, Kurtz probably has a case to complain...

    ...except that Kurtz himself has drawn Marvel characters before (I recall the Dazzler bit) for no real reason himself. Fans commission artists to draw iconic superhero comic characters all the time. Marvel and DC could squash this practice like a bug, but choose not to, because it's really quite harmless.

    And that's the stance Kurtz should have taken here. Another artist got paid $2 to draw Skull? Wow. That and a quarter still won't get you a cup of joe these days. I know he's sore about Skull getting tagged in the eye, but seriously, what's the real harm?

    (disclosures- I've bought work off both artists. Both, I think, are decent guys with great senses of humor.)

  4. If it's a paid published piece using another IP, it is against the law without original authors permission.

    If he is displaying a "commission" for non commercial use, it is considered non copyright infringement and is parody and satire.

    There's hundreds of artists on Deviant Art that post "commissions" of Marvel and DC characters that are published on their galleries, but they give copyright information and do not distribute commercially.

    Fair Use is weak term for using another character in your publication, if it is not for commercial use.

    Then again, I parody and satire as well, but I publish on webcomics for free viewing and distribution.


  5. Um, Scott Kurtz IS a public figure in the context of comicon and webcomics, PVP is probably the most popular webcomic after penny-arcade.

    So if Skull is a public figure, then what's the difference between DJ's drawing and Hellboy posing on the DISASTER MOVIE poster. It's parody and satire, to put it another way, it's not posing as a PVP product to gain profits. DJ should've kept it up.

  6. the whole thing is incredibly stupid but really what DJ did does fall under the same rights as the pvp star wars stuff...regardless of how idiotic. kurtz makes money off his usage on copyrighted characters..i'm really kind of on the fence still about it.

    sure its a commissioned work..but so was the hustler/falwell stuff...that wasn't made in house..that was commissioned. really going over the laws about this stuff it does fall under fair use parody...though there is a court case where disney got a few things blocked over the years..but thats disney..they aren't bound by human laws.

    i look at it like this..kurtz was never really a favorite of mine. there seems to be this big double standard. you can't just accept the good without the bad. if you open yourself up for parody it really shouldn't matter if its in 'reverance' or some idiotic juvenile shit. i as a creator of comics that 5 people read i've gotten my share of parody content..some i think is good and clever and some horrific and nasty..i just man up and shrug it off. i just think by pointing out whats good and proper limitations like kurtz has done it just kind of makes him look like an idiot. i understand being upset..but the satire wasn't really all that personal..

    shit..someone drew a picture of spider-man raping one of my characters...sickening and all that but like did i go online and scream about it? nah..its better to not encourage the morons.

    and really parody doesn't matter if the character is iconic or not...some of the best satires of the ages were about people no one ever knew about...yet still perfectly cool. the idea is taking something and goofing on it.

    just so people know the idea of parody and satire isn't always about being a public commentary or statement. look at the clerks cartoon for one episode they show a picture of randal holding a gun to someones head with the words 'greatest hall monitor' the picture was a parody of the famous picture of an execution from viet nam which the name escapes me. it was done for a giggle and most people missed it..and it was perfectly fine and nothing to take action on. there's a million examples of satire without a real point in varying degrees of taste and its perfectly cool legally.

    unless its donald duck getting a handjob...then your family is going to be murdered in the night by ninjas with the mickey ears on.

    ok that was lame..really the point is scott kurtz need to chill out...for every ass kissing 'pvpisdabestevAR' piece of fluff parody there is always going to be juvenile skullfucking and the like. screaming about it is only going to encourage what he doesn't want or add into the negative feelings i've been hearing rumblings of for a while now.

  7. Anonymous1:56 PM

    I'm gonna file this under legal, but incredibly not-classy. Coffman is a jackass for not at least touching base with Scott about it. It's not as if they don't have each other's email.

    On the other hand, Scott Kurtz is one of the mightiest douchebags on the internet.

    So, maybe, instead, I'll just cackle with glee as two scumsuckers fight each other for my amusement.


  8. We’re getting out various legal terms all mixed up here.
    On the terms of if this is a parody, as defined by Hustler Magazine v. Falwell, DJ might be able to make a case of it. So yeah, probably legal there. Still, it’s a bad legal move, as it invites in the possibility of legal action against him. If you tick someone off that might have legal standing against you, you’re far more likely to end up in court.
    At this point, it becomes a case of trademark infringement. According to the TESS, Kurtz does not own the trademark for Skull as a character. This puts him on legally soft ground, and is something he really should address, and soon. Leaving Skull open like that is not good, especially if your entire career is based on that character.
    Mickey Mouse is trademarked, which is where most of Disney’s legal muscle comes from.
    The copyright laws would apply here, though. It’s an unlicensed use of a character. If the parody defense falls through, Coffman is screwed. Yes, it’s only $2. But it is a work created for cash. Just because every pro you know does this at a show doesn’t mean it’s legal. A lot sell original art and don’t report it on their taxes. This is also illegal.
    And an argument could be made that Coffman made the drawing for the low cash rate to create this drawing – he did post it in a public forum then continued to banter with Kurtz, who can’t walk away from any drama. The anti-Kurtz crowd could potentially flock to Coffman and create a solid source of income for him. And if it comes down to a court case, Coffman would be unable to beat this argument, as he himself is on record for saying that a lot of people hate Kurtz and that he’s drawn other, worse things.

  9. To answer the legal question posed by the good lady, I do believe the image drawn to be completely legal on Coffman's part, but in very poor taste, which isn't surprising. The ironic thing to me is, Scott Kurtz brought more attention to this then anyone, Coffman never advertised it, posted about it, or tried to use the image to promote his $2 dollar service. If Scott would have just asked to have it removed and not took it to the public forum, we wouldn't be here today discussing it, and knowing Rich JOhnston, he probably has a copy of it that he' going to post, and since he also knows it's a dark satire, he'll likely have no problem keeping it up to fuel the drama in a very legal way. Again, all because of Scott's mouth rambling on.

    I've seen a great deal worse on the internet. I'm surprised Coffman hasn't reposted the image out of sheer spite for Kurtz.

  10. Anonymous5:33 PM

    Unless DJ Coffman is implying that Marvel is somehow screwing Scott Kurtz out of his property or out of sales for his books, the art has no parodiacal context. And since this was supposedly a commissioned sketch without any written contextual to that effect it's fair to say that no, this is not parody or satire. Parody and / or satire have to have a certain context to them, usually "to mock or make a commentary (at least in part) upon the original work or the creator thereof." So, what commentary is DJ Coffman making, and just who is it directed towards: Marvel Entertainment, Scott Kurtz, or both?

    I'd be interested to see what Marvel's legal department thinks of it.

  11. I find the legal question here a boring one, and not because I'm not interested in copyright law - I actually have fairly strong opinions on many aspects of copyright and live in hope that we'll someday get back to something reasonable in terms of copyright terms (Mickey Mouse should have entered the public domain years ago).

    The reason the legal question seems boring to me is that DJ Coffman isn't going to hurt Scott Kurtz's business with this, isn't trying to appropriate Kurtz's intellectual property and isn't going to make any "real" money here.

    The interesting part to me is that a man as successful as Scott Kurtz can get so [publicly] upset over nothing. If he really believes that there's a copyright violation here, all he had to do was hand the issue over to his attorney and shut his hole. Instead, by taking public umbrage over this nothing issue, he makes himself look small and petty.

    I've read PVP Online for years, and in fact have bought collections of the comic. I've even got a little Skull plush (I just know Francis would refer to that as "ghey"). While this kind of nonsense won't ruin my enjoyment of the strip, it doesn't help a bit...

  12. I really think people are missing the point on this whole thing. It is NOT a copyright issue.

    Ask yourself this, how would YOU feel if someone drew a picture of YOUR beloved cartoon character being skull-fucked by another comic character, selling said art, and posting it on the internet?

    I know I wouldn't be too happy.

    And, FYI, I am a fan of both Kurtz and Coffman, so this isn't a bias towards either.

  13. Ah... nice and all, but the New Yorker did it so much better this week.

    As for fair use... yeah, it does seem to fall under the Flynt ruling... just take a look at the various Slash fiction over on Literotica. (Rumor has it that at least one comicbook professional wrote slash comicbook fiction, and was subsequently hired by a big comics publisher.)

    In the book, "How to Make Webcomics", Kurtz shows us his office. On one wall is a drawing by Frank Cho of Jade Fontaine, nude on a bearskin rug. Draw (heh) your own conclusions.

  14. Anonymous12:57 AM


    "The reason the legal question seems boring to me is that DJ Coffman isn't going to hurt Scott Kurtz's business with this, isn't trying to appropriate Kurtz's intellectual property and isn't going to make any 'real' money here."

    Which is why I said I'd like to see what Marvel says, because you theoretically *can* hurt Marvel using one of their characters in such fashion. In fact, there was a recent brouhaha because one of the artists who worked on the last batch of Marvel Masterpiece sketchcards took one of their 'extras' artists get to sell on eBay and drew zombie Spider-Man eating out Mary Jane. Partly because it was on an "official" stock (a MM sketchcard), but just the general concept really had Upper Deck and the artist in hot water, and now all creators have to have ALL their MM sketchcards approved by Marvel for inclusion in the packs AND the commissions.

    This may not be an "official" work, but I'm sure if they wanted to, Marvel could make DJ's life hell. And let's not forget the rulings against artist Mike Diana, which were his *own* characters.

  15. Hustler v. Falwell is about libel, not fair use - the parody finding is incidental. A more useful definition of parody and satire is from Campbell v. Acuff-Rose (the "Pretty Woman" case), where the Supreme Court basically came down on the idea that if the appropriation is there to comment or target the original, then it's parody. If the appropriation is being used just to "get attention or avoid the drudgery in working up something fresh", then it's satire, and satire does not qualify as fair use.

    In any case, fair use is a notoriously fickle standard to apply: mere lack of commercial use does not immunize you, because there are a whole slew of factors the Court can consider. Not all the factors need be present, and their absence or presence does not preclude the Court from determining whether it's fair use or not. Also, the Court looks at the amount of appropriation, whether or not the parody took more than was necessary to "conjure up" the object of parody.

    Sometimes it's down to who has the deeper pockets. And if one looks at the cases, the courts tend to rule against parodies they find obscene or in bad taste and let slide those they do not.

  16. I would've thought the definition of satire to be more sophisticated than that versus simple parody, but so be it.

  17. Is it satire? Is It parody? I don't know. This would be an interesting case to follow if it ever went to court.

    What do I think? Well, I think of parody and satire is poking fun at a subject to get a desired effect. There usually is some meaning the artist is trying to create behind the satire/parody.

    So, what is Coffman parodying/satirizing? Skull's love of being buggered in his eye socket? The Red Skull's love of skull buggery? Skull buggery itself?

    And, not to correct the Supreme Court, but Encarta defines satire as follows:

    1. use of wit to criticize behavior: the use of wit, especially irony, sarcasm, and ridicule, to criticize faults

    And Parody:

    1. amusing imitation: a piece of writing or music that deliberately copies another work in a comic or satirical way

    So it seems that the Supreme Court got those two mixed up.


  18. Clearly it's a satire and play on words of their actual character names and the act that is going on. Still in very bad taste, but very much legal.