Yes, in this case let us assume the mural was painted for no payment. I’d assume plenty of small businesses do their own art. And they’re not selling it to anyone. It’s a work of art: I don’t see a big difference between using a visual representation that would be a trademark if you were using it to sell stuff versus having a character in a novel listen to an ad with a fairly accurately transcribed text. (Not entirely accurately which could fall under copyright laws.)
In both cases I see the potential for lawsuits, but not the justice of the outcome if the business won (and conversely, I do not see that using “trademarks” in artworks should challenge the use of that trademark.) The painting in my mind only slightly increases the chance for confusion over the text in the fiction.
I’d like to see a fixed term of 30 years, which is close to the old 14 year term plus 14 year extension. I’d also like to see the return of the registration requirement. Fair use should be expanded to include making copies of works that are out-of-print for more than a reasonable amount of time, say 10 years. The United States should withdraw from the Berne Convention if it can’t be reformed.
Same for orphan work (or is that also abandonware?)
Potential obstacles:
corporations are more and more often given the rights of individuals, ie: treated as people. People ordinarily can’t be forced to cough up their intellectual property, and besides, what if Sony BMG wants to set up a college fund for its grand-nieces and nephews?
everlasting contentious hairsplitting about what is or isn’t “obstructionism.” This could essentially defang the legislation.
Not to hijack the thread, but such a practice is supposed to be prohibited to a corporation and its officers/officials under basic corporate law. In brief, one of a corpororation’s purposes is to limit its shareholder’s liability against suits from outsiders. In other words, the maximum that that a corporate creditor could receive is the value of the company and that creditor could not pursue the shareholder’s personal assets beyond even if the amount of the debt exceeded the value of the company. That protection is lost if the corporation is used as an alter ego for the shareholder himself. A college fund for a shareholder’s nieces is not a valid corporate purpose and therefore the corporate liability shield would be gone.
In a very real way, Mickey Mouse is a bad example to use in this context as that symbol is both a trademark (of the Disney corporation - used to identify their goods and services and recognizable as such) and a copyrightable work (or a character in a copyrightable work). It muddies the waters considerably. Many of the more recognizable Disney characters are actually both copyrighted and protected by trademark - one has to give Disney credit for the single most vigorous intellectual properties defense behavior in history.
The problem with a mural like the one in that example is that it manages to be both a violation of copyright protections *and * a violation of trademark protections. I don’t have to like it, but I do have to give Disney credit for using their characters as trademarks and gaining the additional protection. At this point, even if copyright protection is adjusted such that those characters enter public domain, most of them are still protected - legitimately even - under trademark law. After all, they do serve as trademarks. One looks at something with a Mickey or a Donald or a Minnie mark and immediately thinks “Ahhh, a Disney product”. Might as well be a Coke or Pepsi symbol - or the deer symbol for Hartford Insurance.
To address the trademarks-in-art scenario though. there were actually a number of cases where people created “artwork” using famous trademarks as part of the design. Ya’ll might remember the “Fuck Coke” (pardon the language in this forum) T-shirts of the late-eighties? The manufacturers used the argument that their T-shirts were essentially art - in the same sense that Andy Warhol’s paintings of Campbell’s soup cans were art, and therefore their use of a form of the Coke trademark wasn’t actionable. This is where the trademark concept of “dilution” comes into play. Use of anyone’s trademark in such a way that it reduces its ability and/or impact as an identifier of goods and services from a particular source is considered dilution. Instances of dilution are also actionable under 15 USC Chapter 22 - although to a lesser extent than instances of misappropriation.
The theory is that a trademark is the property of its owner. Therefore, only its owner is entitled to determine how and in what context it is used. This is again to prevent someone from using it in a fashion that’s either against the best interests of the owner (as was the case in the Coke T-Shirts above) or just not an image the owner wanted associated with their product. Some of the other instances involved use of trademarks in “art” that was very much on the racy side - one of the classics was a logo for a very conservative, family-oriented product painted across the breasts and belly of a naked woman. Nothing derogatory was said about the company or the product, but it wasn’t the image they wanted associated with them either.
Just to make sure, the Fuck Coke t-shirts and the breast-belly product painting cases were both won by the trademark holders?
If so, how similar do the images have to be before they violate trademark? Can I use the Coca-Cola font but have a different color scheme (e.g. purple on orange)? Can I use a different font (say vanilla Times New Roman) but have the traditional silver on red?
Sorry, yes they were both won by the trademark owners.
The gold standard of trademark law is the “confused customer” standard. Most litigation in the area of determining whether or not a mark is in violation of an existing trademark centers around the “likelihood of confusion”. So, if someone is looking at whatever mark you’re using (or wanting to use) and the first thing that pops into their head is “Eh, that’s the Coke symbol, with different colors”, then you’re probably too close.
If the trademark owner can actually produce a customer (or potential customer) who’s willing to testify in court that they thought it was a product by the trademark owner, then, if that testimony is credible testimony, the trademark owner wins the infringement/dilution case (absent some special circumstances). In fact, in suits where the trademark owner has a lineup of actual customers who were confused about whether or not the product bearing the offending mark was a product of the trademark owner or not, summary judgement is actually appropriate, and sometimes entered against the defendant.
The problem with trying to figure out whether or not something is too close to a trademark to be useable is, of course, that it’s sometimes a little hard to tell where the line is. “Likelihood of confusion” is a slippery sort of definition - and one based on a whole army of different factors to be considered. So when asking “how close can I get”, it’s hard to give a definite answer. All this is also complicated when the trademark in question is a “famous mark”. The more famous a trademark is, the less leeway you’re going to get around the likelihood of confusion area, should it wind up in court. Famous marks get more protection precisely because it gets harder for consumers to tell what’s really a Coke (for example) product and what isn’t - so the policy is to give less leeway around famous marks.
Trademark law is sort of a weird oddity in that its focus has always been about ensuring that consumers end up with the product they think they’re buying from the company they think they’re buying it from. It’s the most general-public/consumer oriented of the intellectual property areas. The legal standard and tests are all about public perception. It’s one of the few areas of law where market research and advertising studies are valuable tools. It’s also why it only takes one clueless doofus to miss the point of art featuring something like a trademarked symbol to land you on the loosing side of a trademark infringement case. One person (no matter how clueless) who’s confused about whether or not Coke authorized the art is enough to equal infringement.
Believe it or not, in the Fuck Coke cases, the Coca-Cola Corporation actually located some people who sincerely thought the Coca-Cola Corporation might have authorized those shirts. :smack: They produced those people at trial, who testified to that belief under oath, then made a motion for summary judgement. And got it. The defendant appealed and got told that it only takes one. Of course, the defendant was using the standard Coke symbol, which didn’t help his case.
Weirdly, it doesn’t matter. If you’re using a trademark in art, even if it’s not infringement, it’s probably dilution. Of course, you could always slap a big fat disclaimer on or near your displayed art so as to elimintate any possibility of confusion Also, the vast majority of companies aren’t really vigilant enough about enforcement to take bona fide artists into court over the matter. If it’s really offensive, they’ll do the “cease and desist” letter route first and only if you’re hostile about it, do the court thing. And that’s only if your art a) comes to their attention and b) bothers them enough to bestir themselves to sic lawyers on you. The issue comes up most commonly in art that’s either produced for mass-market (like those stupid peeing-Calvin stickers or Fuck Coke T-shirts) or displayed in major media fashion. The naked woman art in question was at a prominent gallery in a major media market on very, very public display - and got some write ups in a variety of major newspapers because of the contradiction between the substance of the work and the public reputation of the company so named.
Yeah, it did. Thanks! Living in China, I see a whole bunch of really funny trademark infringements. A lot of products are of course just out and out fake (Sony, North Face, Apple, etc.), but some just look like the western counterparts. There’s a brand of cookies that look almost exactly like Oreos, with the trademark blue packaging and such but they only have a Chinese name (that differs from Oreos’ Chinese name). There’s a popular brand of gummy-like candy here called QQ, and there’s also a knockoff called MM and another called PP!
If these trademark laws ever hit the Middle Kingdom, the legal world here will have a feeding frenzy.
I just wish they were uniform.
In Spain, a photographer will stamp the back of prints with his name and the date for the customer’s reference. That way if you’re satisfied with the print, you know where to go, and if you’re not satisfied, you know where not to go. Those pictures are still understood to belong to the customer. If the picture is “the photographer’s”, they sign it on the front.
I had the most ridiculous trouble trying to get blown-up copies of my photographs in the US because, seeing the stamp, the copy places and photographers told me I needed permission in writing from the copyright owner and would not believe that I was the copyright owner (hi, it was me behind the camera).
In a world that’s, in many respects, so tiny, there’s too many instances where laws that are supposed to be international vary from country to country and even, sometimes, county to county (driving regs anybody?)
Get rid of them. Let authors sell their labor, rather than trying to sell information in discrete chunks as if it were a physical thing.
Practically:
Slash the terms down to, say, 25 years from the date of authorship for most works, and 5 to 10 years for software (which ages a lot faster).
Roll back the retroactive extensions for old works, placing into the public domain any works whose copyright terms would’ve expired already if Congress hadn’t lengthened them at the last minute.
Ensure that all fair use is exempt from the DMCA’s anti-circumvention sections, and that it’s legal to create and distribute the necessary tools to perform fair use copying.
Legalize P2P sharing, sampling, the creation of mash-ups and other derivatives, etc. of works that have been made available to the public (i.e. offered for sale, broadcast, or shown in theaters), as long as a reasonable license fee is paid. The details of how this point might be implemented are less important (and I’d guess less controversial) than the goal, which is to prevent authors from vetoing certain uses or means of distribution.
Thanks Aangelica for the excellent explanations. There are a lot of great ideas here and I would like to mix and match a bit.
First, I would frame the changes around a set of goals or requirements. Perhaps clarifying that the goal is to provide sufficient incentive to create great works for the betterment of society and not to provide a mechanism for an individual’s long-term financial well-being.
I think time limits should be fixed to a number of years and not to a lifetime. If a person dies before their time limit, they can pass ownership to their estate. If they live longer, then hopefully they saved money or created newer works.
I like the idea of uniformity for copyright holders regardless of whether they are individuals or corporations.
I like the idea of uniformity between copyright and patents, there is no reason the copyright on a book should provide longer protection than the patent on a wiget for the same reason that the copyright on a movie should be the same as that of a poem.
Any re-registration fees should be nominal. Anyone should be able to maintain their copyright, not just wealthy individuals or corporations. Concern that a copyright holder might re-register all of his works, regardless of his intention to distribute, should be balanced by limiting the time of ownership.
It is important to conciously balance the rights of the creator with the rights of the public. Personally, I favor giving the creator very strong rights (as it is today), but severely limiting the time of ownership. However, if I compromised and agreed with points to limit the creators rights (such as use-it-or-lose-it), then I would suggest that the time be lengthened accordingly. It would be interesting to offer the creator a choice of plans, but I suspect that would be more trouble than it is worth.
Better spell out the extent of fair-use (time-shifting, format-shifting, sampling, etc.)
I wonder if it would make sense to restrict creations to either copyright or trade-mark? That way you could have either Mickey Mouse the protected character or Mickey Mouse the protected mark.
That’s already the case with copyright. It says so right in the Constitution.
There are a lot of economic reasons against this. However, the main reason is that copyright protection isn’t that strong, and the weakest of the IP protections. It’s just that people here “law suit” and they get all scared.
Again, the patent is the strongest form of protection. There is no hazy “fair use” of a patent. A patent means that something is ready for production and to be placed into market. The monopoly granted by the patent creates a market distortion. The founding fathers new this, which is why they limited the time of the patent. On the other hand, a copyright signifies authorship. It is meant to create and inspire other works. That’s why there is fair use. The thinking then, and the thinking today is that without copyright protection, people aren’t going to create.
Registration fees are nominal. In fact, you don’t even have to register. The only reason to register is to receive stautory damages. IIRC, it’s $95 (it might be $75).
That’s what fair use is for. The extended time limit is take into account the advances in technology, the inability of lawmakers to keep up with those advances.
Spelling out fair use means codifying it. As with regular laws, Congress is reactive rather than proactive. By keeping Fair Use more open, the market (i.e. the practice of common people) decide what is best and what is fair. Codifying Fair Use any more makes it easier for people to game the system. I’d rather have people fear a possible breach of copyright and act conservatively, rather than run wild recklessly.
The problem with this approach is that you would have to then define art. Since no one can come up with an adequate definition of art, and, not to mention, how it is perceived, people will identify Mickey Mouse as both a work of art, and a trademark of a company.
I would actually contend that trademark is the strongest form of protection - in a lot of ways it’s more absolute than a patent. If nothing else, a trademark has no temporal limitation. Patents expire.
Additionally, there’s the fact that a patent, by definition and nature, must be extraordinarily specific. Minor deviations can (and historically have) prevent the patent holder from winning an infringement case. The other forms of intellectual properties protection are more liberal in their boundaries insofar as litigating infringement is concerned.
I believe you are incorrect in the reasoning that lack of copyright protection leads to reduction in people creating. People create regardless of copyright protection. Prior to 1710 (the Statute of Anne) there was essentially no copyright protection as we understand it in the modern era. In fact, many of the world’s greatest works of art and literature were created in a time before any meaningful protection existed and have never known the limitation of a copyright. In modern vernacular, they’ve always been public domain. What modern copyright (and other intellectual properties) law does is seek to provide an economic incentive for the creation of new and unique advances in the arts and science. It’s basically an incentive program. As such, it’s been phenomenally effective.
Actually, I contend it’s still phenomenally effective. I’m not even convinced that the current term limits on copyright are a bad thing. I think they’re a little exaggerated - and they were definitely passed into law almost purely as a result of pressure from special interests. I’m not sure it’s a bad thing though.
The current copyright protection term does serve to provide an even greater economic incentive. How much better an example can you think of than Disney for the economic possibilities of a successful piece of art?
Yes, there are abuses - there would be in any system. There are definitely drawbacks to the current system. But it does provide a really, really major incentive for broadening the scope of arts and science. If you think critically about the intent of the original U.S. Copyright law (as stated in the Constitution), rarely have laws been as successful at fulfilling their original intent as have the copyright laws. Whole major industries have flourished based on not much more than practical application of intellectual properties law.
I further contend that the fair use exceptions in copyright law provide ample opportunity for a creative work to stimulate further advances even while it’s term of protection is in effect. Most works that would be protected solely by copyright law have their greatest effect as a creative goad quickly. If you think about groundbreaking works of art and literature, how many of them were still revolutionizing thought and breaking new ground 28 years after their first publication? 28 years being the original maximum copyright length. I submit that their function of spurring the expansion of the universe of art was largely fulfilled in that time.
I’m not sure that reducing the term of copyright protection is actually worth the cost in terms of reducing the economic incentive by reducing its temporal scope.
For the record, my own personal beliefs on the matter are that copyrights should extend for the duration of the author’s life plus ten years in the case where the author is a real person. In cases where the author is a corporate entity of some form, the copyright should extend for a fixed number of years in the general vicinity of 50.
Actually, apparently at the time, there was a reasonable faction of the American public who thought those T-shirts were a really really bad attempt by the Coca-Cola Corporation to expand their appeal to a younger audience. It was during the height of the “Cola Wars” and apparently there were a number of people who thought that the T-shirts were one of Coke’s salvos in that direction - to make them less wholesome, edgier and therefore more appealing to rebellious youth.
In other words, they thought it was a failed advertising ploy.
But don’t forget the trade-off: there may be a greater economic incentive to create new works, but each of those works are worth less because the public’s ability to freely use them is limited for even longer. I’m not convinced that we really have gotten much overall benefit, if any.
If the only way to obtain a movie is to buy it in a box at the store, and the only way to enjoy it once you’ve gotten it is to put it in an approved DVD player and watch it with the restrictions that your DVD player enforces, and you’ll have to buy another copy when the next generation of technology comes out, then that movie is worth less to the public than one that you can get from anywhere, watch on anything (including your video iPod or your Linux PC or whatever comes out next year) in any fashion (skipping the ads at the beginning; including subtitles or deleted scenes that you downloaded from the internet; replacing that cantina scene with the one where Han shoots first), share with all your friends and family, back up in case it gets damaged, and that you can easily and legally take excerpts from for use in a review, collage, fan-fiction sequel, etc.
And by extension, a movie that stays in the former state for 95 years before shifting to the latter is worth less than one that only stays there for 50 years.
Also, the vast majority of companies aren’t really vigilant enough about enforcement to take bona fide artists into court over the matter. If it’s really offensive, they’ll do the “cease and desist” letter route first and only if you’re hostile about it, do the court thing. And that’s only if your art a) comes to their attention and b) bothers them enough to bestir themselves to sic lawyers on you. The issue comes up most commonly in art that’s either produced for mass-market (like those stupid peeing-Calvin stickers or Fuck Coke T-shirts) or displayed in major media fashion. The naked woman art in question was at a prominent gallery in a major media market on very, very public display - and got some write ups in a variety of major newspapers because of the contradiction between the substance of the work and the public reputation of the company so named.