Chicago’s own Cards Against Humanity, the vulgar/raunchy/funny/the-opposite-of-politically-correct card game, filed a lawsuit against SCS Direct for its selling card sets called “Humanity Hates Trump.”[1] Humanity Hates Trump – along with Humanity Hates Hillary Too!, to be non-partisan about it all – card sets are available on its website.[2]
SCS Direct displays the following disclaimer on its website:
This set is in no way endorsed or affiliated with Donald J. Trump himself or Cards Against Humanity™, a registered trademark of Cards Against Humanity LLC, nor does it represent the views of SCS Direct Inc.
The focus of the case is whether the Humanity Hates Trump cards infringe Cards Against Humanity’s trademark and copyrights.
Cards Against Humanity makes its cards available for free download through a Creative Commons license, namely, the “Attribution-Non Commercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)” license.[3] While the name is a mouthful, the license is actually rather simple. Licensees can share, copy, and adapt the Cards Against Humanity game as long as they give credit to Cards Against Humanity, make their adapted product available under the same license, and not use the borrowed material for commercial purposes.[4]
SCS Direct clearly sells its Humanity Hates Trump cards online for commercial gain, and its cards use the same simplistic, black and white appearance of the Cards Against Humanity products.
The case touches on several interesting issues. Is Cards Against product appearance protected under trade dress law? Are its cards protected under copyright law? Do the Humanity Hates Trump cards “remix, transform, and build upon the [Cards Against Humanity] material,” as described in the Creative Commons license? Or, are the Humanity Hates Trump cards a separate product not covered under the CC BY-NC-SA 2.0 license? How much latitude do licensees have under the license, or Creative Commons licenses in general, with respect to making, offering (for free), or selling “adapted” products? Maybe none, maybe some. We’ll see.
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[1] Cards Against Humanity LLC v. SCS Direct Inc. et al., case number 1:17-cv-02781 (E.D.N.Y. May 8, 2017).
[2] See https://humanityhatestrump.com/.
[3] See https://cardsagainsthumanity.com/ and http://s3.amazonaws.com/cah/CAH_MainGame.pdf.
[4] The license is available on the Creative Commons website. See https://creativecommons.org/licenses/by-nc-sa/2.0/.
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