Yes and no. That article is about copyrighting characters for purposes of derivative works. Hard to see how the knit cap at issue here is a derivative work. Perhaps covered by trademark (discussed earlier in the article), but that’s a whole ‘nuther can o’ worms.
Another unusual trademarked item is the sound of a Harley Davidson engine.
:D:D:D I love flat cats.
My old neighbor used to knit hats, and she made a few hats like this…long before Firefly ever was shown. So yeah, if the makers will just refrain from advertising the creations as Jayne’s hats, I think that they can legally sell them. The problem, of course, is that people aren’t looking for just ANY knitted hats, they’re looking for hats like the one worn by a favorite character, so how are they gonna search for those hats now?
The point is - the hat cannot be trademarked - it’s hard to see how it could, especially considering it was bought from someone else fully formed. The only creative input was selecting it off a rack.
What can be copyrighted (copyritten?) is the name and concept of the the character Jayne. Just like Tribbles vs. Martian flatcats - you can’t use the character created (and hence copyright) by someone else without the artist(s)'s permission. (I guess Heinlein wasn’t around to object…)
If it was advertised as “The Perfect Hat For a Tough Guy” you would most likely get away with it.
Jayne says,
I’m done with serging, yo!
Nitpick: Copyright is a noun, not a verb. (You don’t ‘copyright’ something, you register a copyright for it.)
Not-so-nitpick: Character names aren’t protected by copyright law, they’re protected by trademark law. You still have to get permission, of course.
Every non-(IP)lawyer’s understanding of IP law is governed by a “gallimaufry of primal impulses, dim suppositions, deranged theories, overheard scraps of conversation, half-remembered pieces of bad advice, and fragments of no-doubt exaggerated anecdotes that amount to rank superstition”.
It’s always interesting to read what people think are the “basic rules of copyright/trademark/patent/design law”, even though this thread has nothing to do with what are the basic rules of anything. This thread was supposed to be about this very specific fact set, of which we don’t yet know all the facts.
OK, I never watched the show and this is the first thing I’ve ever heard about the hats. Explain to me what the connection with “cunning” is. I see them described off and on in one of the attached links as “Jayne’s Cunning Hat”.
Maybe they should be sold as “Cunning Hats”?
Jayne puts on the hat and calls it cunning.
Look more closely.
The website does provide links to other sites that sell “official” Doctor Who scarves. But www.doctorwhoscarf.com itself is a fan site that’s devoted to telling people who want to make their own scarves exactly how to do it. They’re not affiliated with the BBC.
It’s stuff like this that made me wuss out of seriously pursuing a side business making iron-on machine embroidered patches based on recognizable icononagraphy whose copyright is owned by someone else. My inquiries into the legalities of such a business usually came back as “well, so long as you’re not too much of a big deal, most corporations won’t bother with coming after you, but if you want to be a legit licensee, then prepare to pay out the nose”.
That’s the way my wife (an attorney) explained IP to me- basically, you have to defend it tooth and nail, because if you don’t, courts tend to find against you.
So in this case, the fact that people have been making Jayne hats for a decade or so with no legal challenges is probably powerful medicine against ThinkGeek or whoever sueing and recovering any money.
In all likelihood though, their tactic is to send the cease & desist letters, and then threaten to sue and/or sue with no intention of winning, but to just make it really onerous for the little guys so they’ll quit selling and settle.
(which is a big part of why I’m all for massive tort reform; the law shouldn’t be used as a weapon by the deep-pocketed like this)