Copyright, Trademark and the Future of Zero Punctuation

Last night, the YouTube gaming community received a shock as The Escapist, and their parent company Gamurs, fired their editor-in-chief, Nick Calandra, prompting the entirety of their video department to also leave the company immediately.

Among those who left was Ben “Yahtzee” Croshaw, the person behind The Escapist’s most popular and longest-running series, Zero Punctuation.

First published in July 2007, Zero Punctuation has been a weekly YouTube staple for over 16 years, combining video game criticism with fast-paced vulgar humor to get hundreds of thousands of views each week.

However, in a Tweet announcing his resignation, Croshaw made it clear that, though he plans to return, he doesn’t have the rights to Zero Punctuation. As such, whatever he does next will be under a different name and different branding.

Some of that new branding may have already been announced. Calandra took to X to share a new Patron for Second Wind Group, which is likely to be the umbrella brand to replace The Escapist. They’ve also set up a YouTube channel, which doesn’t have any videos at this time.

But while it appears that Croshaw will be back to his swearing ways in no time at all, there’s still over sixteen years of history tied up in the Zero Punctuation brand. This begs the question: What will happen to all of that?

The answer, for better or worse, is likely not much.

Bias Disclosure: I’ve been a fan of Croshaw and Zero Punctuation since not long after he moved to the Escapist in 2007. One of the reasons I am writing this is because I am deeply saddened to see the series end so abruptly, but wanted to offer practical info about what the law says in this space as well as some historical context.

Trademark and Copyright in Sweary Internet Videos

According to IMDB, there are some 828 episodes of Zero Punctuation already in existence. The Escapist, or rather Gamurs, holds two different kinds of rights in that content: Trademark and Copyright.

Though these two rights are connected, they protect very different things.

As per the US Patent and Trademark Office, “A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.” In short, it’s anything that designates the brand Zero Punctuation and separates it from other series.

Most notably, that includes the name “Zero Punctuation” as well as the series’ logo and other terms/marks used to designate the series. It could, in some situations, go as far as to pertain to colors and aesthetic choices if there is a genuine risk that the similarities might cause confusion in the marketplace, meaning lead people to believe a video is Zero Punctuation when it isn’t.

The other right is copyright, which is a limited right to prevent copying and republication of protected material. In this case, it includes the videos themselves, podcasts based on them, the scripts the videos were made from. In short, copyright protects original works of authorship that are fixed into a tangible form of expression. Bear in mind that copyright does not protect the idea behind something, just the expression of that idea.

Since Croshaw was an employee of The Escapist, the company owns the rights to his works. This means that the company holds both the copyright in all the previous episodes and the trademark and branding around Zero Punctuation as an entity.

This means that, without some kind of rights acquisition, Croshaw nor Second Wind Group will be able to publish those past episodes, use significant portions from them, or use any of the Zero Punctuation branding.

Those, at least for now, reside with The Escapist. So what can they do? The answer is actually quite a lot.

Restarting and Moving Forward

While this does mean that this is likely the end for Zero Punctuation as a series, it’s almost certainly not the end for Croshaw and his particular brand of fast-paced and vulgar video reviews.

The reason is that neither copyright nor trademark protect the idea of doing video game reviews mixed with vulgar jokes and odd cultural references. In fact, Croshaw wasn’t the first video game reviewer to earn a reputation for angry humor and swearing. The James Rolfe-produced series the Angry Video Game Nerd (AVGN) started in 2004, predating Zero Punctuation by several years.

Though the two series are very different, most notably that AVGN is live action and Zero Punctuation is animated, it proves that no one has a monopoly on swearing and crude humor in video game reviews.

In short, the format of Zero Punctuation is likely safe for Croshaw to use. That said, he will not be able to use the name or branding of Zero Punctuation. This will likely mean more than just a name change, and will also likely impact the aesthetic of whatever comes next.

This means that some iconic elements associated with the original series, such as the heavy use of bright yellow, the series’ theme song, and the various characters drawn for it, including Croshaw himself and a series of “demons”, will likely be changed (Note: The demons also appear in the logo, raising both copyright and trademark concerns.).

That’s because The Escapist continues to own not just the Zero Punctuation branding, but the content of those videos. Though there are likely fair use arguments that could be made for certain limited uses of the original content, given how acrimonious the separation appears to be, Croshaw and Second Wind Group will likely not want to tempt fate.

As powerful as fair use is, proving a use is a fair use can be an expensive and time-consuming process as it involves being sued and defending that case. Calandra and Croshaw are probably more interested in avoiding lawsuits than winning them.

In the end, there’s not much doubt that Croshaw can continue making comedy video game review videos filled with dirty jokes and a sped up style. However, those videos are definitely going to be branded differently and will likely look quite a bit different too as the new company looks to avoid copyright or trademark issues.

Of course, this could change if, down the road, Croshaw or Calandra could acquire the rights to the previous episodes. However, that is not likely how any new series will begin. But, even if it doesn’t, The Escapist doesn’t hold rights to Croshaw’s voice or the big idea behind the series, opening doors for a new series in the same vein, but not a direct continuation of what came before.

Bottom Line

Interestingly, we actually have fairly strong and recent precedent for what is happening at The Escapist right now.

In October 2017, WhatCulture Wrestling, a prominent YouTube channel among wrestling fans, lost five of their best-known presenters in a similarly caustic separation. Those five went on to found Cultaholic, a separate wrestling channel that is still active today.

However, WhatCulture Wrestling is still very much around and, technically, has over 2x the subscribers of Cultaholic. That comes down to two reasons. First, WhatCulture was much larger than the five people who left and they at least some of their presenters and talent remained. Second, the terms of the separation were more vague and, though WhatCulture wasn’t viewed favorably in the split, it didn’t receive nearly the backlash we’ve seen against The Escapist and Gamurs.

Still, this story proves that these kinds of separation can happen and that those who break away can find success, even if there have been significant challenges on that path. That said, though Cultaholic does many of the things that WhatCuture does, the two channels do have a different feel from one another.

Something similar is likely to happen here. Though it’s virtually a guarantee that Croshaw will be back, expect the new series to look and feel different, even with the same people working on it. Some of that will be owed to the fact it’s a new setup with new rules, but much of it will be strategic to avoid legal issues with their former employer.

So, while this is clearly the end of Zero Punctuation (unless The Escapist attempts to revive it under another creator), it’s not the end of Croshaw, his reviews or his seemingly endless supply of sex jokes. What follows will definitely different from Zero Punctuation, but it will still be very much Croshaw.

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