A question about copyrights and cars.

Factual Questions
1

On a Mini Cooper message board I frequent, someone posted up that they sell T-Shirts.

I checked them out, and this is what I saw:

Shirts with drawn images of a mini cooper (with the word “motor”* on it in a minicooperesque font.)
Shirts with charactures of a mini cooper (no text).
Shirts with the “s” logo (While other cars do have red s’s, I have (coincidentally) looked and Mini’s isdifferent).
I suggested to her that she may reconsider not posting at the mini board because what she is selling is a black market item. Often, people from the mini Corp. pop in to give us info on our cars. I have been helping to run the board and I recall how cautious the Dope is in regards to postings regarding illegal subjects.

She claims that because their website has the following disclaimer, all is ok:
We are an independant company and as such have no affiliation with MINI USA or BMW,AG. Our products are NOT meant to represent OFFICIAL MINI Merchandise.
She claims her products are not black market as they are not illegal or underground.
So, I hope that this is not being percieved as bringing an outside problem to the dope. I genuinely am curious about the legal aspects of these shirts.

Are these shirts legal?

*mini often uses the word “motor” in their ad campaigns: go motoring today!

2

It seems likely that this is an issue of trademark, not copyright. Copyright would apply to the drawing of the car, but not the design of the car itself.

That said, I don’t have enough information on copyright law to respond further.

–Cliffy

3

I agree. The trademark lawyers at Mini Cooper will eventually send her a strong letter because her disclaimer is legally as much protection as hitting the keyboard randomly like this anjklalja fase sefj asefase fwef/jk rjkl/jk r.

4

Is the image of the Mini registered as a trademark? If it is, it’s the only car that has its image trademarked that I know of.

5

You may want to read this excellent discussion of copyright and trademark issues. It’s pretty lengthy, but search for the word “Jeep” to get to the pertinent stuff.

Somewhat related is this article on one man’s experience fighting trademark lawyers (yeah, I know the D.O. isn’t exactly the highest paragon of journalistic integrity, but hey).

Anyhow, while the T-shirts may or may not be legal, it is certain that Mini’s lawyers would be most displeased once made aware of them, so the decision now has to be whether you (or she) is willing to put up with the hassle or not.

OK, we need a real lawyer in here, quick…

6

If Mini’s lawyers find you, you will get a letter from them. This is a given. They need to send that letter or they may lose their trademark.

Whether they decide to do more depends on a lot of factors: how zealously they guard their trademark; whether the images are the same or merely close; if close, how close?, etc.

7

This article gets it mostly right in pointing out that there are certain specialized circumstances in which trademarks and likenesses can be used, and journalists have been given much greater leeway to use them in conjunction with their work.

He’s wrong when he says that Fitzgerald and Hemingway would lose their copyrights soon. Only their very early, pre-1923 work is in the public domain. The Sonny Bono Copyright Act of 1998 (two years before this article was written) extended their copyrights for 20 years.

And this line:

rates a big no, no, no, no, maybe in the work-for-hire journalistic world, but not mine. I’m a writer and I most definitely own my own work. That’s what copyright means. I may license it to a publisher to have exclusive rights to market for a limited time, but creators own their works until and unless they are sold away or are created as work-for-hire in the first place.

Not at all related is this article. This case turned on first amendment issues of free expression. Commercial speech does not, as it happens, fall under the first amendment protections. And using others’ images for profit is about as prohibited as it can get.

8

Thanks for the input.

I just look at the shirts and they certainly seem illegal to my eye, but I wasn’t sure if one could actually trademark a car.

I would think that with a car as obvious in design as a mini, it would be hard to feign ignorance. If I drew a generic capris Classic, well, that could be just about any car from that era. A mini, it seems to me, will always look like a mini.

9

IANAL, but I am a publisher and have a little experience with copyright and trademark issues.

IMO, if the drawings of the car are original and were created by the person making the shirts (or someone working for her), and if they do not use the exact Mini Cooper trademark, I believe they are technically not in violation of copyright or trademark law. The safest one is probably the caricature, which has a stronger case for being an artistic expression.

I do not believe that a manufacturer of a physical product like a car can copyright the general appearance of the object. They can copyright a specific photograph or image of the car, but not any image you might create. My basis for this argument is that there are many clip art images available of actual cars (e.g. a 1971 Corvette). In fact, just today I saw a catalog of hundreds of such images available to be embroidered on clothing.

The same is NOT true of the car company’s logo, for which they hold the trademark and the right to produce products using that trademark.

So I believe that if the drawings on the shirts are original, owned by the shirt maker, and don’t include a trademarked logo, they are technically legal. But, as I said, IANAL. (And it occurs to me that my experience, here in the U.S., may not be entirely applicable or relevant in a case involving an EU company.)

HOWEVER, this doesn’t mean that BMW (which now makes the Mini Cooper) won’t be sending her or you a threatening letter. They may not have the law entirely (or even partially) on their side, but they no doubt have more lawyers and money than you, and could try to bully you and/or her. I’ve heard of people ignoring such threats or sending a reply that simply and clearly states how they have not violated the law, with no further action taken against them.

But as Damon Runyon said, “The race is not always to the swift, nor the battle to the strong – but that’s the way to bet.”

So if your lawyer says they have no case and you feel like standing up for the little guy against the the corporate behemoths that are taking over the world, stand up for her rights. If you’re a lilly-liverered weakling willing to give up vital constitutional rights just to avoid a lengthy and costly legal battle, by all means kick her off your site.

Or you could just lie low, and hope that no one notices.

10

well, I don’t think that is fair at all.
this reminds me of one of those arguements that conclude:

If you are a smart, patriotic american, you know I am right.
If you think I am wrong, well, obviously, you must be a stupid communist.*

I personally think she is in violation. As an artist, I respect other works of art, trademark, etc. Just because a comapny is huge (such as Mini Corp) does not make them jerks for trying protect their image.

If for example, I became very famous for my work and it became an industry of sorts, I would be pretty miffed if someone was ripping off my images. Just because your a ‘little’ guy doesn’t mean you are always in the right.
*this taken from a typical weekly world news poll.

11

Avanti will be relieved at this :smiley:

(This lawsuit is what I thought this thread was about, before opening. Yeah, trademark, not copyright.)

-AmbushBug

12

I wasn’t trying to be fair, just mildly humorous.

I’ve explained my reasons for believing that there is no violation, based on my personal experience with actual legal cases involving alleged trademark and copyright violations.

You’ve said that “as an artist” you “think she is in violation” and that “they certainly seem illegal to my eye.” These are not compelling arguments. (On the other hand, her disclaimer is hardly bulletproof from a legal point of view, either.)

Your use of the the term “black market” would only apply if the shirts copied an authorized product so closely that an average person could confuse the two. But if the drawings are in fact original and not copies of some other works, and they do not include the Mini trademark, they are not “black market.”

A real lawyer will probably be along soon and explain in greater detail why I’m completely right in everything I’ve said.

In the meantime, here are some sources of info on the principles of copyright and trademark.

In any case, even if BMW has an issue with her, the owner of the message board is unlikely to be a target of BMW’s ire if all the seller has done is post a message advising the availability of the shirts. (If she’s a paying sponsor, that might be different.) So I’d guess the worst that would happen is that you’d get a letter saying stop allowing her to post, and you’d stop, and that would be that.

But I recommend you let sleeping dogs lie.

13

Yeah, I agree with you.

I have nothing to gain or lose in this issue. I have zero intentions of contacting BMW or anything. What she does and what they do is none of my business.

It just lead me to wonder about the use of trademarks in regards to cars. I wasn’t sure what the status was.