I have a question about legal parody/fair use.

Whether a work qualifies for a parody defense to a charge of copyright infringement is a complex question that really depends on how the alleged parody work mocks or comments on the original (or its author), and it's a very fact-dependent inquiry. Realize that parody can be a DEFENSE to a lawsuit, not an immunity from it, so there's always a risk to rceating what someone thinks is a parody. In the Henley case, DeVores' songs were not protected parodies. In various trademark parody cases, the courts' rulings sometimes find parodies, sometimes they don't (linked below). You'll have to read a lot of parody cases, or hire a lawyer who's already done that, for help. Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

Building on what Ms. Koslyn stated, also bear in mind that parody is distinct from satire. Parody uses an author's work to comment on the work itself or the author. Satire uses an author's work to comment on something other than the work or the author. For example, the Cat in the Hat was used to comment on the O.J. Simpson killings / trial, but because the Dr. Suess works were used to comment on a third party (O.J. Simpson and related persons), there was no parody and no Fair Use. http://caselaw.findlaw.com/us-9th-circuit/1384979.html - Neil Wehneman P.S. The standard disclaimers apply: we have no attorney-client relationship, and I lack the facts to give you legal advice. If in doubt, consult an attorney licensed in your jurisdiction.

The phrase "Achievement Unlocked" is not copyrightable but the trade dress and appearance of XBOX and its graphics are certainly protected intellectual property. When you say "everyone else is doing it" and "How do the get away with it" They are not getting away with it, they are just not caught yet. It coul dbe that Xbox doesn't wnt to spend the tim and money to go after each and every infringement or that they are deciding that for now this helps their brand somehow. But it is not parody because it is not making fun of the XBOX game itself. This is just a derivative use of their trademarked appearance. If you are going to start a new business, especially a business whose model relies on the intellectual property of others, it is a good idea to sit down with a lawyer for a few hours to start off on the right path.

The issue of whether a work constitutes a parody is complex and requires a sophisticated understanding of the case law. Courts are much more likely to uphold a parody defense if the parody is a clear attempt to ridicule or make fun of the original work so as to challenge the point of view of reflected in the original work from a political, historical, sociological, scientific, religious or other such serious perspective. Typically, a parody makes extensive use of the underlying work but then makes changes so as to ridicule or challenge the point of view of the original work. I looked at the two images that you provided. I cannot imagine that what you characterize as a "parody" would constitute copyright infringement. And this really is not a traditional parody. The "parody" is a substantially different drawing that comments on the concept of "original achievement" in a video game. There is no similarity, whatsover in the two drawings other than the concept of "achievement unlocked". Copyright law does not protect the phrase "achievement unlocked" (although it could conceivaby be protected by trademark law). If this is an example of what you propose to do, you may not have much of a copyright problem. A parody normally is a remake or an original work that uses most of the original elements and characters, but changes them in order to make fun of and ridicule the original work for purposes of expressing a particular point of view. The drawings above do not constitute a remake of the original work, but simply makes a joke about the kind of achievement that can be unlocked. This is not parody in the traditional sense, and this is probably not a copyright law issue. But you have another problem. The real problem here concerns trademark law. The XBOX people may have obtained a trademark for the phrase "achievement unlocked". If you use the XBOX trademark to confuse people into believing that yor product is approved by or associated with the XBOX company, then you likely are engaging in a trademark violation. However, if you use the phrase so as to ridicule x box and/or make a political commentary of some kind, this might constitute a fair use of this trademark. The question of when use of a trademark is a "fair use" protected by first amendment interests is very controversial, and the law in this area is quite unsettled. Some argue that there is no "fair use" defense for famous trademarks because federal law permits a trademark owner to argue that ridicule of a trademark results in dilution of its value. Others argue that the doctrine of dilution must be interpreted consistent with first amendment values that allow limited use of a trademark for purposes of freedom of expression, commentary and criticism of the brand. One thing is certain---if you proceed with your plan nothing a lawyer can say now will stop the folks behind XBOX from suing you for violating their trademark rights and perhaps other IP rights. Even if you ultimately prevail in proving a parody or fair use defense (or some other defense), litigation is expensive. If you want to pursue this business, you need to understand two important points---(1) this is a serious and risky business, and you need to treat this as a business, and (2) you need to be guided by experienced counsel every step of the way. Finally, the good news is that people involved in the video-game world often have a sense of humor, and they are very sophisticated concerning how to best take advantage of marketing opportunities. It may be that the XBox people would be willing to grant you permission to pursue your ideas pursuant to some kind of royalty/license agreement. Perhaps your "parody" ideas might actually be good for marketing XBox. Why not try to get a license/permission before engaging in such a risky business? Discuss these and many other issues with the lawyer you retain--it goes without saying that you must retain.