It’s a short simply-written article, but the upshot is this: Jayne’s cunning hat from Firefly was and is quite a popular fanmade item sold at cons and on Etsy. There’s a licensed version now, though, sold through ThinkGeek. Sellers of the handmade hat have received cease-and-desist notices from Etsy after receiving IP challenges from Fox.
I only have a little knowledge of copyright law – I worked in copyright permissions for a textbook company many years ago – but this doesn’t really seem to wash. There wasn’t a licensed product for over ten years. To my uncertain knowledge, they did not defend this design from IP infringement during that time. It’s also just a knit yellow-and-orange ear hat with a bobble on top.
My question, I guess, is this: would their case of IP infringement hold up in court? Would it only hold up if the seller called it a Jayne hat or a Firefly hat? Is this, as I suspect, just Etsy being notoriously risk-averse and erring on the side of making the large, wealthy people with lawyers happy rather than showing loyalty to their customer base?
And, given that the hat’s basic design (knit, earflaps, bobble on top) had been made and sold in many other colors for a long time before Firefly aired, how copyrightable is the hat in that specific color pattern?
I find that article totally unreadable, and my knowledge of IP law isn’t terribly thorough, but my understanding from Business Law 101 is this. If the copyright claim is being brought by the copyright owner - usually the person who created the design or the company that person worked for - it doesn’t matter whether a licence was created previously. Copyright on an original creation exists naturally from the moment of creation, regardless of whether any steps were taken to register or otherwise protect it. Of course, the more time passes the harder it may be to prove that it *was *your original creation.
There are two possible kinds of intellectual property (IP) protection for the design of that hat. One is copyright, and with that you need to prove that the design is original – which might be hard to prove.
The other is as a trade mark. With that, the fact that many people have been making and selling the hats over the years without the possible owner of the trade mark trying to protect its rights may well be fatal.
I’d like to see all the facts (like did the sellers use the name “Jayne” to advertise, what was written in the cease and desist letter), but my preliminary thoughts are that Etsy buckled under the pressure from a Fox legal assault, and Fox doesn’t have a leg to stand on.
However Fox need to show their licensee that they are doing what they can to protect the value of the license, so their just doing their job. And Etzy buckled rather than fight for a handful of unimportant vendors.
It’s a pretty generic looking hat, and the only distinctive part of it is the two colors. Thats not very distinctive. There’s nothing in the law that I know of that provides copyright protection to clothing design (although fabric patterns can be protected under design law and also copyright law). This is not a case of fabric design though, because it’s knitted, and I think that makes a difference.
Etzy could have just asked the vendors to stop calling it a “Jayne” hat and I think the problem would have just faded away. There’s no way this is a trademark case unless the vendors were using “Jayne”, but even then still unlikely.
IANAL, but as “useful objects”, items of clothing can’t be copyrighted. Are we sure this is copyright per se and not trademark or design patent infringement?
Although I’d be hard pressed to agree that a two-colour earflap cap would be worthy of a design patent.
(shrug) Maybe Fox is just going against Etsy sellers who can’t fight back and might not get the kind of Internet respect that would be accorded a woodworker?
We’re talking about Fox? Hmmm, maybe the terms we want are patent or copyright troll. Neither technically apply to Fox here, but I don’t see how that’s relevant.
I think you’ve hit on the real reason there. A lot of times companies will make apparently hopeless efforts as part of a “good faith” attempt (legal version of “at least I tried”).
Actually, a single color has been ruled by courts as a valid trademark (to be fair, the defendent was using the color on a competing product, in a way that closely resembled the plaintiff’s product). John Deere has a trademark for a certain shade of green (“John Deere green”) as the dominant color on farm equipment. Owens Corning has trademarked the color pink for insulation.
So, it’s possible Fox could have a valid trademark on that color pattern on that style of hat. Of course they’d have to show to prove it was an original design, and not simply something the prop department picked up from a clothing supplier or craft fair.
Not having read the take down letter, or really looked at the item ads in question, I am wondering if the objection is not so much with the hat design, but rather with the use of Jayne or Firefly in selling the hats.
I’m thinking if the hat is being sold without any kind of Firefly description but rather just as an orange and yellow hat, then perhaps it wouldn’t be subject to the claim.
The hats were clearly being sold under the name “Jayne’s hats”. Big studios usually mass trademark most of the proper nouns involved in their movies/shows, so I suspect FOX is legally within its rights to say that “Jayne” is a FOX trademark that’s being infringed by Etsy sellers, and that the Etsy folks are using a copywrited character to sell their goods.
Its a pretty crappy move from both the PR standpoint, and I think somewhat unethical. But legally I think FOX is within its rights.
There are a number of interesting questions here: (IANAL)
Is in fact the name “Jayne” trademarked? Was it trademarked before the hats became popular items?
Obviously the character name is copyright, so use of the name in a context that implies it relates to that character involves copyright…
You can’t advertise a “Harry Potter Scarf” or “Doctor Who Scarf” without permission (assuming a certain scarf colour cannot be copyright/trademarked), why would you assume you can use the name Jayne in the context recognizable as relating to Th Firefly Character?
Can you trademark what is essentially a simple hat design?
Can you copyright or trademark what is essentially (as the prop guy said) a hat bought off the rack from a store, even if the configuration and colour are distinctive?
Considering that “knock-off” dresses of red carpet spectaculars apparently show up within days, I doubt a simple hat is going to qualify on its own.
I also wonder whether the colour scheme is distinctive enough to be proprietary, especially considering the Fox property is not the original artist.
So basically, as long as the name is not used, I imagine the design is good to sell.
I wonder what would happen if the hat was sold as “Jane” or “Jaine”? (Jain IIRC is a religion).
However, on such interesting questions are lawyers’ country club fees paid.
Notice it’s “The Official…” scarf and licensed.
You could probably sell the same thing not licensed, but then you could not mention Doctor Whatsisname…
better have a good lawyer.
However, IIRC the Burberry tartan is copyright. The design is sufficiently distinctive and unusual to qualify for copyright/trademark - as is the Nike “swoosh”.
However, the Lego round connectors on the bricks did not qualify as a trademark, at least in Canada. They were simply functional elements.
Please note that copyright and trademark are two different things. Copyright is for protecting a creative work. Trademark is for protecting a word or symbol that identifies the origin of a product or service. You can’t copyright the name “Jayne” or “Firefly” (they’re too short), but you can trademark them (and Fox probably did). The issue is that, if a seller is selling something and calling it a “Jayne hat”, or saying “As seen on Firefly”, then they’re giving the impression that it’s an officially-licensed product, when it’s not. That’s the kind of thing that trademark law is intended to prevent.
You can’t copyright the name “Jayne”, but you can (and FOX certainly has) copyright the character. And once that’s done, the character can’t be used to sell things, even if there’s no trademark issue. The ads in the article are pretty clearly using the character to sell hats, so there is a copyright issue, even if Jayne isn’t a trademark.
From what I gather, if the character is distinctive enough, it can be copyrighted. That is to say, you cannot for example copyright the name Spock (some baby doctor might sue you too) but if you have an alien, with pointy ears, who says “Fascinating!” and is logical to an extreme, you are stealing someone else’s intellectual property. You can’t write Harry Potter sex scenes or a Harry Potter children’s novel without permission, even if the characters were not trademarked.
From what I am reading there, it’s back to the same question - how distinctive is the original, and to what extent are you copying the original?
Dickens, for example, spent a fortune chasing fly-by-night publishers who insisted they were simply “improving” A Christmas Carol and so should not be considered infringing as their work was different. A judge will decide if your “copy” is close enough to the original that you are simply copying some aspect of someone else’s creative output. “Jayne” is not just a name - “Jayne from Firefly” is a complex character that was the product of a creative process and is entitled to protection, even if your fiction has him doing things he never did or would have done in the original. In that situation, trademark just reinforces the protection.
That’s not how trademarks work. Think of trademarks as comprising two seperate but equally important parts: (a) the logo, and (b) the goods or services provided.
In this case, Fox would have to be looney to have tried to trademark a hat design. What would they be selling under the hat design logo? :dubious:
I’m not sure they do. I can’t even find a single federal US registration for “BUFFY” (the character or TV show).
We were at a early Star Trek Convention. David Gerrold came by our table, where a couple of the girls had made tribbles, and told us we couldn’t sell those, and he was going to get Con Staff.
I hastily made a sign “Martian Flat Cats”. He came back with said staffer, looked at sign, got all red and walked away.
Note to those who don’t get this, Gerrold did write that wonderful ST epi; The Trouble with Tribbles" but anyone who is a SF fan knows that the idea of tribbles came earlier with Heinlein (and he was influenced by “Pigs is Pigs”), altho certainly the rest of the stuff is his alone.
So, yeah, Fox might have a leg to stand on with “Jayne’s hats”, but not with the hats alone.
