I see a whole lot of problems with the notion that the voice can be the trademark either of Hawking or of the company that made the equipment.
First of all, there’s the whole use in commerce problem. We need evidence that one or the other is using the voice itself as an indicator of the origin of goods and services.
If the voice was created with the idea that people who can’t talk are going to use the voice to talk, that cuts against the capability of the voice to be a distinctive source indicator.
There’s also the issue of functionality. A functional feature of a product can’t be a trademark because competitors can’t be stopped from offering that function.
(As a matter of trademark law, that is. Obviously, if you are claiming patent rights, that’s a different issue.)
Thanks. And the arabic numerals couldn’t be trademarked…unless they were in some “Microsoft” new font that was recognizable as “Microsoft?”
Or what about those damn eternally un-understandable icons, " " (can’t print it) and “|” that are either on/off or off/on? I and a billion other people first saw those on IBM PCs; I hope they trademarked it so their shame is legally binding… (No doubt in short order a Teeming One will supply the history and logical way to interpret the signs.)
Come to think of it, why don’t all typographers sue? (A propos, one of the greatest, Zapf, died very recently.)
Any word, symbol, phrase, name, image (and sometimes a sound or color) can potentially become a trademark, if it is:
Distinctive – That is, if it is capable of serving as a trademark or brand for goods or services. One of the considerations here is whether the putative trademark might be generic or descriptive of the goods and services in question.
Is used in commerce – As an indicator of the origin of goods and services. That is, is it actually being used as a trademark?
So, yes, it is perfectly conceivable for the Arabic figure 1 or 0 to serve as a trademark for something. It has to meet all the requirements of a trademark, including whether it’s distinctive (with respect to the goods and services in question) and whether it’s actually being used in commerce (as an indicator of the origin of the gods and services in question).
So, you could have a 1 brand ice cream. Why not? If we’re talking about the computer industry, you could have a 1 brand computer. If we’re talking about Microsoft, you could have a 1 brand productivity software.
And the typeface in which that 1 trademark appeared – whether it’s new or old – would not matter.
An icon–like any word, symbol, image, etc.–could conceivably become a trademark. Why not?
I’m going to lecture here again about how using “trademarked” in this way confuses the people who are using it.
You get trademark rights through use. The creator of whatever icon you’re talking about could earn trademark rights by using it as a trademark.
What exactly do you think you are saying when you say “I hope they trademarked it”?
I think you’re talking about registration. But here’s the thing I have to say over and over again: Registration is not the origin of trademark rights. Use is the origin of trademark rights.
Are you asking why typographers don’t sue the people who use their typefaces? Have you thought that question through thoroughly?
Here are some things to consider:
A typographer likely holds some kind of copyright interest in the designs of the letters (the “typeface”) and also possibly in the software that makes the typeface usable by a computer (the “font”).
But not trademark rights. A typeface is meant to be used. It’s functional. It’s like a shirt. Or a pencil.
What would be the benefit to a typographer in suing the users of his or her typeface? Wouldn’t that just mean that people would stop using that typeface?
There was also a pretty important decision that held that typefaces or fonts cannot be copyrighted. The program creating them can be, but not the typefaces themselves. This is why Wikimedia Commons has so many text logos and such. (They can, of course, still be trademarked, and Wikimedia warns you of this.)
Here’s what the Wikipedia article has to say–and it references the actual caselaw.
And I will continue to use the word “trademarked” when I mean it generically, and not necessarily a registered trademark. I use “copyrighted” the same way.
As for the question here, I have to believe that, while it may not actually be copyrighted, Hawking must have some means of protecting his voice or else he wouldn’t keep saying that. Personality rights make a lot of sense–in that you can’t use something that sounds like his actual voice while pretending it is actually him. This would explain why the movie needed permission.
Would the movie also work as “use in commerce,” especially if the voice were used in the trailer?
You realize you’re asking this question of someone who had a “come to think of it” thought in the midst of a spirited discussion of a topic with which he is trying to learn through a succession of back-and-forth Internet postings on a general interest forum?
And so, to answer the question, although it was clearly rhetorical: no. So sue me.
Also, if you wonder about the Adobe case, it involved actually copying the exact numerical control points from Adobe’s font. The court determined that you could produce identical output without such copying, and that the choice of the points counted as artistic expression.
If you’re unaware of what a control point is, here’s an easy example: take a circle. You could pick any point on that circle and say tell it how to curve to make a circle. Sure, there is one point (the center) that is optimal, but it’s not the only choice. And, in more complex shapes, there’s not always a clear optimal choice.
If SSI had been smarter and just copied the shapes without taking anything from Adobe’s font code, they would not have been found to be infringing.
That said, there are design patents which add a wrinkle that I will defer to someone else to explain. In the Adobe case, the design patents were argued to be improperly formed, and thus invalid. But I assume modern font designers would fix this issue. I would guess that it only prevents making duplicate or derivative fonts, however.
And I don’t think the majority of people, including you, understand what you mean to say when you use “trademarked” or “copyrighted” and I’ll continue to point it out, especially when it’s in a post that reflects exactly that lack of understanding.
And the worst example is this sort of thing: “Did he copyright/trademark it?” I can guarantee you that the person asking that question holds some serious misconceptions about how copyright and trademark law works.
Note that this is very different when comes to patent law. “Did he patent it?” is a perfectly good question, precisely because of the way patent law works.
Well, he could just be wrong every time he says it. That’s not unlikely, even if he is a famous scientist. But if you see my comments about personality rights above, I think you’ll find they you’re not entirely off base.
It’s still not clear to me exactly what they got permission for, so I can’t say.
No. It’s not a use in commerce for the purpose of trademark law.
In fact, I can’t think off the top of my head of any way that the voice—or any voice—can be a trademark, unless that voice is saying exactly the same thing every time.
Like Tom Bodett saying “We’ll leave the light on for you” in Motel 6 commercials. Of course that’s a trademark in Bon-spoken form too.
Or the NBC chimes—when you hear it, you know that you are being presented programming from a particular source, NBC.
Works under copyright whose owners cannot be found are called orphan works. That makes it impossible for legitimate parties to offer to reprint them to make the work currently available in a legal, rather than pirated, edition.
[QUOTE=Steal this Music: How Intellectual Property Law Affects Musical Creativity (2006)]
Waits v Frito-Lay and Midler v Ford indicate that a singer who is famous enough to be recognized by his or her voice alone can protect that voice from being appropriated or mimicked without permission
[/quote]
It’s not a “different take” though. Your first cite is talking about personality rights. Your second is talking about copyright protection.
Personality rights (right of publicity) give you a right to control commercial misappropriation of your persona: Your appearance, name, likeness, identity, voice, etc.
Copyright law gives you certain exclusive rights in a work of authorship, which is an original and creative work of expression fixed in a perceivable medium.
Of course you can’t have copyright protection in your physiognomy, physical attributes, or your voice. None of that is an original and creative work of expression fixed in a perceivable medium.
Now you certainly could use your physiognomy, physical attributes, or your voice to create original and creative works of expression fixed in a perceivable medium, in the same way that you can use a pencil to draw a picture, or your body and voice to give an acting performance on film.
(As a matter of speculation, I think it is conceivable that someone could intentionally modify one’s body to an extent that it might become some kind of work, like a sculptural work, but that’s really a different issue.)
