Trademarks, Copyright, and fair use?

Factual Questions
21

People can’t “copyright” their images or pictures of themselves (unless they took it themselves, or got the creator to assign the copyright to them). However, if you copy a picture of Bill Gates as part of your T-shirt, you are likely infringing the copyright of the owner of the original photo.
So to be safe, you may want to take the pic of Gates yourself. Good luck on setting that up…
Right of publicity generally says you have the right to control how and when your image is used to promote products. A fairly recent famous case was one where a company (I can’t remember which one, I think it was an Asian electronics company) did an ad that showed a metal robot, apparently female, posed in front of a series of blocks of letters, some of them covered, others uncovered.
Vanna White sues, saying it violates her right of publicity. And, remarkably, she won!
Even more out there is a car commercial that had a Bette Midler “sound-alike” singing a tune commonly associated with Bette. She sues – claiming that public associated the voice and song combination with her, and therefore thought she had endorsed the car, which she hadn’t. She won.

So, in summary, you mess with rich and powerful celebrities at your peril…

22

Journalists don’t have a better right to invade your privacy than any one else. They can’t sneak around your house and take your picture. If you do something in public, however, you can’t claim the right to privacy. Public figures, in general, waive some of their privacy rights, such as their pictures being displayed, which private persons still retain. They obviously don’t waive all of them.

I don’t know about the tm on a tee shirt. You’re not using it to infringe their rights or sell a competiting product. As I said, if you’re doing it for parody, they may have an action for libel, unless it comes under the “fair use” doctrine.

23

There isn’t a “fair use” defense to libel. There is a “truth” defense, or a “public figure, no reckless disregard for the truth” defense (and an “OK, it’s not true, I recklessly disregarded the truth, but there was no harm” defense).
There is a thing commonly referred to as “trade libel,” but it is really just an off-shoot of trademark law.

24

If it’s a parody it’s not libel. “Fair use” or freedom of speech, whatever you want to call it.

25

Okay, so let me see if I got this straight…

  1. Generally speaking, using a photo of someone is not allowed, due to privacy issues. For high-profile public figures, this is relaxed a bit, though you cannot use a celebrity’s image either to give the illusion of promoting something, or for libel.

  2. There is a “fair use” for trademarks, but it’s somewhat restrictive, requiring the user to not use the mark excessively and to avoid implying endorsement.

  3. The usual restrictions on libel and unfounded accusations apply.

  4. Generally speaking, if you peeve off the wrong people, they’ll probably try to intimidate you with a lawsuit anyway. For any big operation, check with a lawyer beforehand.

And things that I’m still a little fuzzy about…

  1. Are there any restrictions (beyond the regular issues of libel et al) about just using a company’s name? Like if I sold T-shirts that said “I hate Ford trucks,” without using the Ford blue-oval logo, is that permissible? I would think it is, as a first amendment issue, but…?

  2. Are outright parodies on trademarks and copyrights allowed? E.g., using the Microsoft Windows logo is not allowed, but is making a parody logo for “Microshaft Winblows” and using that allowed?

And finally, to answer nolo’s question, this is a relatively small operation – I’m not looking at peppering stuff in shopping malls nationwide, for instance. But I do plan to advertise and sell on the web, so theoretically I could be found by anyone using a search engine. And as I mentioned earlier in this thread, I’d like to make sure I’m safely in the clear so the lawers can’t do anything but shrug and say “no, there’s nothing we can legally do to stop him”.

26

You might try contacting someone at Big Dogs - they create parody apparel.

I know they used the Intel logo - don’t know if they took on MS though!

27

Using the name is less likely to earn you a lawsuit (first amendment rights do give you a good chance of getting off), but you could still be sued if the company is inclined.

Probably, although, again, Microsoft could make your life difficult. But you can argue that no one would mistake the parody for the real thing and have a good chance of winning.

28

If you produce tee shirts saying that you hate Microsoft, that’s just an opinion. You’re entitled to your opinion: free speech. No libel. If, however, you give reasons for that and those reasons are not true, then you’d be subject to libel.

A tee shirt that says “Microshaft Windblows.” or similarly worded message, is not a parody. What is it parodying? It’s merely a ridiculously similarly sounding name to Microsoft Windows. However, since no one can confuse it with the real McCoy, you’d probably not be subject to any lawsuit. What would be the cause of action? Not plagiarism. Not libel.

29

Then “Bill Gates is a Monopolist” is certainly safe, since that’s an unarguable fact (as supported by Judge Jackson’s findings in the antitrust case).

I thought silly-sounding names were a staple of parody.

So that’s another entirely-safe option, then. Thanks!

30

There are also some interesting cases about properties based on a famous person. For example, take the humorously-named case of John Carson and Carson Enterprises v. Here’s Johnny Portable Toilets, Inc. Johnny Carson sued the porta-potty™ company in question, sayin the name violated his right of privacy, seeing as the phrase “Here’s Johnny!” is a famous Ed McMahon catchprase from Johnny’s show. The court saw in Carson’s favor, saying that if the company was just named after him, say, like “J.W. Carson Portable Toilets,” there wouldn’t be a problem, since there are probably more than one J.W. Carsons. But “Here’s Johnny” is identified with Johnny Carson and Johnny Carson alone.

31

Caution: IAAL, but I don’t practice in IP.

One further ambiguity in “right of privacy/right of publicity” cases: different jurisdictions have wildly different views. As I recall, my home state of New York disfavors the entire class of rights (a view I support - you don’t want someone making fun of you? DON’T GO ON TV, YOU STUPID SCHMO!).

California, home to much more of the TV industry, coddles its poor, put-upon celebrities, providing statutory foundation for its draconian “rights” of publicity.

Of course, the problem is that once your t-shirt gets to California, you’re subject to California law. And you might be subject even if you weave a solvent into each shirt that activates at the Sierra Nevada - Bette could argue (and may very well have) that she suffered injury in California even if the offending recording only ever played on New York radio.

32

"Okay, so let me see if I got this straight…

  1. Generally speaking, using a photo of someone is not allowed, due to privacy issues. For high-profile public figures, this is relaxed a bit, though you cannot use a celebrity’s image either to give the illusion of promoting something, or for libel."
    Yes, approximately. It is right of publicity, not privacy issue (which depends on the state, too). You’d also need the a license from the copyright holder of the picture, if you don’t take it yourself.

“2. There is a “fair use” for trademarks, but it’s somewhat restrictive, requiring the user to not use the mark excessively and to avoid implying endorsement.”
Not exactly. You can only use enough of the mark to remind people of the mark you are “fairly using,” and generally it should not be on goods similar to those sold by owner of the mark.

“3. The usual restrictions on libel and unfounded accusations apply.”
Yes. Although if you are using a mark (vs. someone’s image), it really isn’t “libel” per se, more like “using the mark in a way that might make people think less of products sold under the mark.”

“4. Generally speaking, if you peeve off the wrong people, they’ll probably try to intimidate you with a lawsuit anyway. For any big operation, check with a lawyer beforehand.”
Yep. Rule #1 of the law – if you piss off someone rich, they have the wherewithall to sue your ass.

“And things that I’m still a little fuzzy about…
5. Are there any restrictions (beyond the regular issues of libel et al) about just using a company’s name? Like if I sold T-shirts that said “I hate Ford trucks,” without using the Ford blue-oval logo,is that permissible? I would think it is, as a first amendment issue, but…?”
Company’s name is usually also its mark (unless it is a common word, like “Apple”). Again, it depends on use of the mark. If you are selling trucks with a label that says “i hate FORD trucks” you got yourself a problem. If you are selling those stickers that show the little kid pissing on “Chevy,” you may be OK.

“6. Are outright parodies on trademarks and copyrights allowed? E.g., using the Microsoft Windows logo is not allowed, but is making a parody logo for “Microshaft Winblows” and using that allowed?”
Probably, but its going to be a question for a judge or jury to figure out whether your use is “fair” or not. And MS may feel they want to sue you, and will argue to the judge/jury that your offensive distillation of their mark is causing people to think less of their company or that they are profane.

“And finally, to answer nolo’s question, this is a relatively small operation – I’m not looking at peppering stuff in shopping malls nationwide, for instance. But I do plan to advertise and sell on the web, so theoretically I could be found by anyone using a search engine. And as I mentioned earlier in this thread, I’d like to make sure I’m safely in the clear so the lawers can’t do anything but shrug and say “no, there’s nothing we can legally do to stop him”.”
To get that advice, you better come up with a different way to make money, I’m afraid…

33

Right, becuse people might mistake your truck as a Ford. But a T-shirt should be okay in this example, then, because Ford’s primary product line aren’t T-shirts.

I was going to question this, but then I realized – the trademark is for “Chevrolet”, not “Chevy”, so that’s OK, is it?

This seems to contradict what barbitu8 wrote earlier, that since their company isn’t the mythical “Microshaft”, they don’t have a leg to stand on. Besides, this seems like a major free speech conflict to me – “Your honor, we want to supress this design because it makes us look bad.” Surely the corporations don’t have that much influence over us…?

Yeah – leave it to the lawers to take the fun out of satire. :slight_smile:

34

I’ll stand by my post that Microshaft is different enough from Microsoft (at least in verbiage) that no reasonable person can confuse them. However, these are always questions for the trier of the facts. So, “probably” is probably a good qualifier.

35

I don’t know…that “little kid” is Calvin from Bill Watterson’s now-retired strip Calvin and Hobbes. I don’t know why Watterson hasn’t seeked legal action yet…

36

Part of the reason Watterson hasn’t taken action is that infringement of Calvin is nearly universal and Watterson is not a major corporation with the deep pockets to go after every infringer. This stems from the fact that B.W. never sold the merchandising rights. So he has no large corporation with such pockets to back him up. Most successful cartoonists sell these rights fairly early in their careers. Someone who infringes Far Side or Dilbert be contacted fairly quickly by lawyers from the owners of the merchandising rights.

In contrast B.W. didn’t want to see Calvin “merchandised.” And the constant battles with his publisher to do exactly that, is part of what drove him to retire the strip.

37

[QUOTE]
*Originally posted by rjung *
**

Actually, trademark holders are quite aggressive in trying to obtain mark protection for their nicknames. Interstingly, in the case of Chevy, GM characterizes it as “trademark,” but not a “registered trademark,” which suggests that they tried to register it but for whatever reason couldn’t. The distinction’s important - registering a trademark with the federal government provides the holder some key presumptions in litigation. What GM has done is assert common-law protections, which aren’t as strong.

From the GM website:

[quote]
Trademark Information
General Motors, GM, the GM Emblem, Chevrolet, the Chevrolet Emblem, Astro, Autotrac, Big Dooley, Blazer, Camaro, the Camaro Emblem, Cavalier, Chevy Express, Concept:Cure and design, Corvette, the Corvette Emblem, Crew Cab, Delco, Delco Electronics, the Delco Emblem, Delco-Loc II, Dexron, EV1, The GM Card, GM Certified Used Vehicles, GM Motor Club, GM Protection Plan, Impala, the Impala Emblem, Insta-Trac, Malibu, the Malibu Emblem, Monte Carlo, National Corvette Museum and design, PASSlock, Prizm, S10, Silverado, Solar-Ray, Suburban, SSR, Tahoe, Tracker, TrailBlazer, Venture, Xtreme, Z24, Z28, Z34, Z71, ZR1, ZR2 and 1-800-CHEV-USA are registered trademarks of General Motors Corporation. Autoride, Avalanche, Chevy, Convert-a-Cab, Custom Rapid Delivery, GM Alternative Fuels, GM Parts, GM Performance Parts, Metro, Midgate, the Monte Carlo Emblem, Vortec, Yooper and Z06 are trademarks of the General Motors Corporation.

38

. . . sort of. I don’t like to get involved in these discussions, and I definitely recommend the OPer consult a lawyer in his or her jurisdiction and take everything read here with a grain of salt. Really came here just to say there’s a lot of interesting stuff in this thread, and a lot of bright people. But I suppose I should add one thing. :slight_smile:

The use of the “TM” symbol by a potential infringer is not talismanic. In other words, it does not free him or her from liability, and can only be a factor in various matters of law (or during the damages phase).

39

Actually, the “TM” symbol indicates that it is the subject of “common law” trademark.
So if you are an infringer, and use that mark, it could be seen as a concession that you acknowledge it as a mark, possibly someone else’s
So it won’t help you, and might conceivable hurt you.