# Using Fictional Trademarks on Real Items as Novelty **URL:** \ **Category:** Factual Questions\ **Created:** [May 1, 2007, 10:53pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391 "2007-05-01T22:53:50Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 4, 2007, 1:55am UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/21 "2007-05-04T01:55:42Z")
> [@](#): > > As to the issue of copyrighting a number, I think the ridiculousness in it can be shown with these two links: > Are these color illegal too? > > and > > take this little trivia test. But I could also very easily convert the characters in a poem into colors and make a GIF of it, or construct a “trivia quiz” whose answers were an acrostic for the same poem. Matter of fact, I could also do both of those things for a thousand-page novel. What does that have to do with whether something is copyrightable? ---
**Author:** ![Jayrot](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@Jayrot](https://boards.straightdope.com/u/Jayrot)\ **Post date:** [May 4, 2007, 6:14am UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/22 "2007-05-04T06:14:59Z")
[QUOTE=Chronos] But I could also very easily convert the characters in a poem into colors and make a GIF of it, or construct a “trivia quiz” whose answers were an acrostic for the same poem. Matter of fact, I could also do both of those things for a thousand-page novel. What does that have to do with whether something is copyrightable? [/QUOTE] How about instead of me trying to explain why a number ISN’T copyrightable, you explain how a number IS copyrightable. Can I copyright the number 9? How about 09? 09F? ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [May 4, 2007, 10:49am UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/23 "2007-05-04T10:49:43Z")
[QUOTE=Raza] Another example came to mind, and in my research I see someone is already marketing these, assumedly without license: [http://www.cafepress.com/delBocaVista](http://www.cafepress.com/delBocaVista). . [/QUOTE] 1. Why make that assumption? How do you know they don’t have a licence? 2. If you’re right, they may be about to get sued. What makes you think they’ll get away with it? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 4, 2007, 2:15pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/24 "2007-05-04T14:15:54Z")
[QUOTE=Chronos] Even aside from **Gfactor** ’s point, why wouldn’t a number be copyrightable? Suppose I had on my computer an MPEG of the latest Spider-man movie, or a PDF of the latest bestseller book… Those are copyrightable (and copyrighted), right? If I did have them on my computer (I don’t), I’d probably be guilty of copyright infringement. But they’re also computer files, and all a computer file really is is one big number. [/QUOTE] Copyright law protects an original, creative work. Thus, it protects what has actually been created by the author – the words, images, sounds, etc. The fact that the work is stored in a form that can be viewed as a number does not extend that protection to the number itself. The number is not original; it is not creative; it is, indeed, not in any sense the work that the author created. People won’t be interested in sitting around looking at the number outside the context of what it is used for. Just as you can assert rights in a novel and then print that novel on paper so that people can see it – copyright protection doesn’t extend to the paper. [QUOTE=Jayrot] As to the issue of copyrighting a number [/quote] This issue is pretty simple. Only an original, creative work can be protected under copyright law. In no case can a number, no matter how long, be considered original or creative. A number is a fact or feature of the natural world. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 4, 2007, 5:19pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/25 "2007-05-04T17:19:57Z")
> [@](#): > > Copyright law protects an original, creative work. Thus, it protects what has actually been created by the author – the words, images, sounds, etc. The fact that the work is stored in a form that can be viewed as a number does not extend that protection to the number itself. If this were true, then filesharing would be perfectly legal. All one filesharer sends to another is a number. That number ends up getting turned back into a sound or a video or a book or whatever when the recipient uses it as input for an MP3 player or video player or text reader, but the thing that is copied is only a number. > [@](#): > > How about instead of me trying to explain why a number ISN’T copyrightable, you explain how a number IS copyrightable. Can I copyright the number 9? How about 09? 09F? No, because those are too short. But you could copyright the number 0x4164616D206861642027656D. Or rather, you could, if Ogden Nash hadn’t beaten you to it (I hope that Nash will forgive me this unauthorized use of his work). ---
**Author:** ![Jayrot](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@Jayrot](https://boards.straightdope.com/u/Jayrot)\ **Post date:** [May 4, 2007, 5:50pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/26 "2007-05-04T17:50:59Z")
[QUOTE=Chronos] If this were true, then filesharing would be perfectly legal. All one filesharer sends to another is a number. That number ends up getting turned back into a sound or a video or a book or whatever when the recipient uses it as input for an MP3 player or video player or text reader, but the thing that is copied is only a number.No, because those are too short. But you could copyright the number 0x4164616D206861642027656D. Or rather, you could, if Ogden Nash hadn’t beaten you to it (I hope that Nash will forgive me this unauthorized use of his work). [/QUOTE] OK, Chronos. So what is the magic minimum number length that you can copyright? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 4, 2007, 6:18pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/27 "2007-05-04T18:18:43Z")
[QUOTE=Chronos] If this were true, then filesharing would be perfectly legal. [/quote] Wrong. > [@](#): > > All one filesharer sends to another is a number. Nope, what is being sent is a copy of the entire work, which, when operated on by the appropriate device, displays the work as intended by the creator. > [@](#): > > That number ends up getting turned back into a sound or a video or a book or whatever when the recipient uses it as input for an MP3 player or video player or text reader, but the thing that is copied is only a number. Irrelevant. The number itself is not protected. The fact that it is enables a tangible manifestation of the creative work is what makes it infringing. If, once given a copy of the number only, the receiver could not in any conceivable way convert it to the creative work, then it would not be infringement. If you reduced the code for a movie to hexadecimal machine language and copied it out with a pen and paper and handed it to someone, then it’s likely that there is no infringement, because there is no way to use that piece of paper to perceive the intended work. > [@](#): > > No, because those are too short. But also because it is not a creative work. It doesn’t express anything. > [@](#): > > But you could copyright the number 0x4164616D206861642027656D. No you couldn’t. > [@](#): > > Or rather, you could, if Ogden Nash hadn’t beaten you to it (I hope that Nash will forgive me this unauthorized use of his work). I doubt very much that Nash or his heirs or assigns could assert rights in that sequence of numbers. It expresses nothing. It is not creative or original. And furthermore, it _is_ still way too short to be protected under copyright law. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 4, 2007, 7:18pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/28 "2007-05-04T19:18:37Z")
> [@](#): > > It expresses nothing. It expresses exactly as much as the equivalent sequence of letters. And I stand corrected, incidentally: It was apparently written by [Strickland Gillilan](http://www.fun-with-words.com/shortest_poem.html), and is now in the public domain by age. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [May 4, 2007, 11:36pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/29 "2007-05-04T23:36:06Z")
[QUOTE=acsenray] And furthermore, it _is_ still way too short to be protected under copyright law. [/QUOTE] I don’t think there is any fixed standard for the minimum length of a copyrightable phrase. [Ashleigh Brilliant](http://www.ashleighbrilliant.com) has [succesfully defended](http://www.ashleighbrilliant.com/WSJ.htm) his copyright of hundreds of brief epigrams. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 6, 2007, 3:03am UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/30 "2007-05-06T03:03:10Z")
[QUOTE=Chronos] It expresses exactly as much as the equivalent sequence of letters. [/quote] What does that even mean? In what way is one alphanumeric sequence equivalent to an alphabetic sequence? If it communicates no understandable information, then it doesn’t express anything. And to be copyrightable, it must do more than just communicate information, it must do it in some kind of original and creative manner. > [@Alan Smithee](#): > > I don’t think there is any fixed standard for the minimum length of a copyrightable phrase. No, indeed. I should have said “I would guess that it is still way too short …” ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [May 6, 2007, 3:41am UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/31 "2007-05-06T03:41:03Z")
> [@](#): > > What does that even mean? In what way is one alphanumeric sequence equivalent to an alphabetic sequence? In the same way that a sequence of dots and dashes over a telegraph line is equivalent to an alphabetic sequence, or a pattern of dots embossed on a paper is equivalent to an alphabetic sequence. Or, for that matter, the same way that a pattern of lines and curves drawn on a piece of paper is equivalent to an alphabetic sequence. “A”, “.-” and “41” are just different ways of writing the same thing. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 7, 2007, 1:47pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/32 "2007-05-07T13:47:30Z")
[QUOTE=Chronos] In the same way that a sequence of dots and dashes over a telegraph line is equivalent to an alphabetic sequence, or a pattern of dots embossed on a paper is equivalent to an alphabetic sequence. Or, for that matter, the same way that a pattern of lines and curves drawn on a piece of paper is equivalent to an alphabetic sequence. [/quote] In that case, _if_ the sequence is copyrightable, it is only because it communicates some sort of original and creative expression, and because it is something more substantial than a single word, title, short phrase, etc. And copyright protection would extend only to those uses that implicate such communication of original and creative expression, not to a simple use of the number qua number and not to independent creation of the same sequence. In other words, it would only be protectable to the extent that it is, in effect, representative of human language in the same way that a sequence of letters is. > [@](#): > > “A”, “.-” and “41” are just different ways of writing the same thing. Only if you can show that the audience, upon seeing “41,” will understand it as the letter “A.” ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 7, 2007, 1:57pm UTC](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391/33 "2007-05-07T13:57:21Z")
A recent court decision I think is relevant to this discussion – _Static Control Components Inc. v. Lexmark International Inc._, No. 02-571 (E.D. Ky. April 18, 2007) Lexmark, a manufacturer of high-end laser printers and toner cartridges created a software interface between the cartridge and the printer to prevent third parties, such as Static Control, from refilling used toner cartridges at lower prices. The interface included a short piece of software that Lexmark referred to as a Toner Loading Program. Static Control copied the entire interface to get their refilled cartridges to work and Lexmark sued saying that Static Control’s copying of the Toner Loading Program constituted copyright infringement. The court concluded that the Toner Loading Program was not copyrightable because it was not sufficiently original (too short) and was not expressive content. There was no one out there buying copies of the Toner Loading Program so that they could enjoy its expression – it was created simply as a MacGuffin so that Lexmark could claim copyright protection in some part of the interface. [Previous page](https://boards.straightdope.com/t/using-fictional-trademarks-on-real-items-as-novelty/402391.md?page=1)