Do you know the number to this design patent? I can see Kodak asserting that its color yellow is protected trade dress, but I’d be surprised that the color could be protected through a design patent.
This is “trademark” in a colloquial sense, not in a legal sense. It’s not a use in commerce, so it can’t be a trademark.
As I stated before, there are many reasons to doubt that he could register his voice qua voice as a trademark.
What do you mean he would be “deriving from Hawking’s work”? Hawking’s work is not his voice. I don’t even know what paradigm (copyright, trademark, etc.) this kind of “deriving” is supposed to implicate.
If someone is intentionally trying to impersonate Hawking, then that could be a violation of his personality rights. Unless Hawking is using his voice as an indicator of the source of origin of some goods and services, you don’t even embark on a likelihood of confusion analysis.
Not in the United States, they don’t. Unregistered trademarks are protectable under both federal and state law in the United States. I assume that there is at least a handful of other countries that protect unregistered trademarks, at the very least as part of unfair business practices law.
What do you mean by “infringed on [his] public persona”? Do you mean, as I stated before, misappropriation of his identity, persona, image, likeness, or voice? If so, again, this is a matter of personality (right of publicity) law, not for trademark law. Whether he has such rights depends on the jurisdiction in which he brings his claim.
In other words, it could mean something else other than being “branded an asshole” (we’re allowed to use grownup words on the SDMB).
As for “ruining his career,” it would depend on the circumstances in which someone is using that voice. Are you actually talking about someone impersonating Hawking in order to, what, sell his own book? Then that’s covered by fraud law and very well might be a crime.
The standards you’ve set forth are all wrong. Just because he does some kind of trade doesn’t mean that his voice is a trademark. What goods or services is he trading in? And how is his voice being used? It can only be a trademark if his voice is used by consumers to identify the goods or services he’s offering.
Where is your nexus between goods and services and the purported mark here? Keep in mind that an author’s name on the cover of a book is not considered a trademark use in commerce. It’s simply a name qua name and names used as names are not protected by trademark law. I would have to think that a person’s voice used simply as speech is the same.
What are Hawking’s goods or services? And how is his voice used to identify the source of such goods or services? You have to think a little deeper here.
If there were any such design patent, it could only be held by the inventor – that is the person who designed the speech synthesizer. And it would expire after 20 years.
This doesn’t sound like design patent law to me. It sounds like trade dress law, which has the same standards as trademark law.
Bottom line: I see potential personality rights or fraud issues here. It might be misappropriation if someone is trying to evoke Hawking’s identity or persona by using his voice. It is fraud is only if someone is attempting to impersonate Hawking; in other words, trying to mislead the public about the identity of the speaker. Otherwise, I see no trademark or patent issues.
If it were a real trademark, the fact that he doesn’t go after whoever’s behind MC Hawking would count against him. You have to actively defend a trademark, or it lapses into the public domain.
I disagree with this analysis. The question is whether MC Hawking’s use would otherwise be infringing. As a parody-type use, it’s unlikely there’s any real likelihood of confusion.
The questions include:
- What is the mark? Is it distinctive?
- What is the use in commerce by Stephen Hawking?
- What is the use in commerce by MC Hawking?
- Do these uses together create a likelihood of confusion?
If MC Hawking’s use isn’t a confusing use in the first place (and I don’t think it is), Stephen Hawking doesn’t have a duty to go after him. And really, the duty to defend is just one bit of evidence among many regarding whether the purported mark really identifies what the plaintiff says it identifies. It’s not a magic spell. Just because you haven’t sued someone doesn’t necessarily mean by itself that you’ve given up your exclusive rights.
From Newsweek.com Dec 18, 2014,
How Eddie Redmayne Got Stephen Hawking to Lend Him His Voice
“After the initial screening, Hawking was so pleased with the movie he allowed the filmmakers to swap the synthetic voice they had to create with his own, copyright version.”
This needs more explanation, because on its face, “copyright version” of his voice seems like gibberish.
If there is copyright protection, what is the creative work? The only creative work I can identify is possibly the software code that creates it.
If that’s the case, I don’t understand the significance of using the “copyright version” of his voice, unless the movie producers faced some kind of technological limitation in independently producing a voice that sounded exactly like Hawking’s voice.
Without further information, I just don’t trust Newsweek to know what it’s talking about. I have read and heard too much bollocks from the general interest press when it comes to intellectual property issues.
I don’t know if this from the Telegraph clears it up or totally muddles it.
Let me point out something that nobody’s mentioned yet, I think. Of course Hawking doesn’t type anything into the synthesizer. He can’t make any movements with his hands. He twitches a single cheek muscle:
Hawking is a super-geek (and was kind of lazy and a big partygoer in his younger days). He appeared on The Simpsons, Futurama, The Big Bang Theory, Star Trek: The New Generation, etc. because he wanted to do it. He’s a big fan of all of those shows (and others like Red Dwarf and Doctor Who). He recently said that he would like to play the villain in a James Bond movie sometime.
The original hardware was a DECtalk DTC01. I have one in my basement somewhere - it was a very expensive standalone box that turned serial (RS-232) commands into speech. It also had a telephone line connection (it was originally intended as an automated voice response system, but was not priced low enough for that to be cost-effective). There were also multi-line versions in racks.
Later, there was a PC (ISA) board and even later, software for use on a PC.
The original DECtalk was a design by Dennis Klatt which was “productized” by Martin Minow.
This leads me to believe that Hawking himself doesn’t really know what he’s talking about.
Or more likely, that it was easier to select “copyrighted” than “trademarked”. I wouldn’t confuse colloquialism with ignorance in any case, but I would imagine that colloquialisms would be different if you had to select your words with eye twitches.
Even if he had said “trademarked,” it still doesn’t clear anything up.
He’s also known to be a Trekkie and even guest-starred on the show as himself, making him the only actor to play himself on Star Trek. This also means you can add “actor” to his list of professions, which could possibly impact the OP as certain jurisdictions may grant legal publicity rights for performers.
Obligatory reference:
Microsoft Patents Ones, Zeroes
NEWS
March 25, 1998
VOL 33 ISSUE 11
Business
REDMOND, WA—In what CEO Bill Gates called “an unfortunate but necessary step to protect our intellectual property from theft and exploitation by competitors,” the Microsoft Corporation patented the numbers one and zero Monday.
Ascenray, if you have the time and inclination, I think a brief dissection of why this joke works (i.e., cannot be done) would be interesting. Because everyone gets it, but apparently a lot of people like me don’t, really, at base.
I know you must get sick of repeating refutations of bollox – did I use that Brit word correctly? – but you’re One of Us now.
You don’t have to be an actor to have personality rights. But, in any case, that is exactly the point I was making in the thread all along. If he has any rights on his voice, it most likely falls under a right of publicity or perhaps under some kind of false association or misappropriation theory.
It still makes zero sense for him—so far as I can tell—or anyone else to say that there is a “copyright(ed)/trademark(ed) version” of his voice or that his voice is “copyrighted/trademarked” given the circumstances that are known so far.
He’s a smart guy, but no one can be an expert on everything.
As Ascenray notes, U.S. courts have defined a right of publicity as a distinct* commercial *right. In some states, the right extends even beyond the lifetime of the celebrity.
Like all commercial claims it gets into a lot of details about whether the impersonation is deliberate or accidental, whether it’s done for commercial reasons, whether it can be considered “damaging” to the interests of the celebrity, etc.
Bette Midler and Tom Waitts successfully sued when companies used voice impersonators without their consent.
The Prankster once copyrighted the alphabet in an old (40s-50s) Superman comic. That can’t be done either. The alphabet, numbers, and other mechanical conglomerations cannot be copyrighted. Nor can common phrases or pseudonyms or titles. (Link goes to .pdf.) Some original content must be involved.
And it’s bollocks although bollox and bollix are sometimes seen.
There are actually several reasons why this can’t happen.
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Only inventions can be patented. Gates didn’t invent ones and zeros.
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Specifically, an invention must be a process, machine, manufacture, or composition of matter. Ones and zeros aren’t any of these things, even if you broadly interpret “process.”
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An invention must be truly novel to be patented—note that this is much stronger than the concept of originality in copyright law. That means that there must be no evidence anywhere that anyone had ever used the concepts of one and zero.
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Laws of nature, natural phenomena, and abstract ideas cannot be patented. It seems to me that one and zero are arguably all three of these things.
And, FWIW, they doubtless would assert trademark/copyright on the voice.
They would doubtless assert copyright-based rights in the program code that created the voice.
Whether they would have any trademark or copyright-based rights to assert in the voice would require a lot more information. It would not be doubtless at all.