Disney+’s “Win or Lose” animated show has been served a copyright infringement notification for their fictional team the “Peaks Valley Pickles” by the real Portland Pickles baseball. Now, yes, they are both baseball teams that are pickle-based, but not to get our brine in a twist, but we’re guessing the people who invented the team on the Disney+ show did it because they thought it would be a funny team name, not because they were taking over the audience or competing with the Portland Team. Fair Use vs Infringement has a number of tent-poles that must be overcome.
First, is it a transformative work from the original? In this case, it is likely unrelated to the original, so it is a whole new form, just both baseball teams based on a pickle mascot. Does it compete in the same market as the original? Both may sell merchandise, but it may be a reach to argue that a Portland baseball team’s merchandise is competing in the same market as an animated show’s baseball team, unless that market is “Hey, I want a funny t-shirt with a pickle mascot on it”, which, arguably, is likely not something a judge would accept. Another hurdle is if the original idea is that original … ie. Is putting a pickle on something that unique that can be defended. It is very likely, given how pickle humor can be found throughout animated shows and merchandising, that a pickle-based baseball team existed before the Portland Pickles, and thus that information would likely put this infringement case in a … pickle? So, not to rub salt (into the pickling brine) wound, but this may only result in more shirts sold by both players in this game. Which perhaps is the goal.
PS Gen AI featured image “Create a cartoon of a pickle in a baseball cap fighting another pickle in a baseball uniform on a pitcher’s mound” brought to you by “basic art” and “Uh, something funny going on around that red hat”.
