Copyright/Intellectual Property

To Knock Out Knockoffs, Knock Off Knockoffs

16 February 2018

From The New York Times:

At a pop-up market stall just off Canal Street, the Madison Avenue of the unauthenticated, shoppers have spent the last week snapping up off-price, jeans, hoodies, T-shirts and boxer briefs with a familiar, almost-right logo: Deisel. Sure, the “i” and “e” are on the wrong side of their usual do-si-do. But you get what you pay for. They’re $69.99; Diesel jeans generally start well over $200. Forget it, Jake — it’s Chinatown.

Companies like Diesel spend significant resources chasing down counterfeiters and stamping them out. According to Renzo Rosso, the founder of Diesel and president of its parent company, the Only the Brave Group, the label shut down 86 websites hawking fake products last year. But Mr. Rosso was crammed into the small, wood-paneled shop on Friday with no intention of dampening Deisel. He’d created it.

“This is a magical moment for logos,” he said, and a brand can embrace its own and its own imitation. If you can’t beat ’em, join ’em, the logic runs: Make the fakes, pocket the cash.

. . . .

 Diesel is far from the only brand to come to this idea. Gucci has riffed on its own bootlegs (and styled its own “Guccy” logo) and set up shop with Daniel Day, better known as Dapper Dan, the counterfeit couturier it had once threatened out of business.

Like Gucci, Diesel aims to make its patronage an event. On Thursday, the rapper Gucci Mane posted about the shop on Instagram, inviting fans to meet him there at noon; by 12:30 the shop was thronged, and the security-patrolled line outside snaked nearly a full city block. Originally planned to remain open through Monday, the shop sold out over the weekend and had to close. On Tuesday, the collection goes online.

Link to the rest at The New York Times

Graffiti Artists Awarded $6.7 Million for Destroyed 5Pointz Murals

15 February 2018

From The New York Times:

Ruling that graffiti — a typically transient form of art — was of sufficient stature to be protected by the law, a federal judge in Brooklyn awarded a judgment of $6.7 million on Monday to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens.

In November, a landmark trial came to a close in Federal District Court in Brooklyn when a civil jury decided that Jerry Wolkoff, a real estate developer who owned 5Pointz, broke the law when he whitewashed dozens of swirling murals at the complex, obliterating what a lawyer for the artists had called “the world’s largest open-air aerosol museum.”

Though Mr. Wolkoff’s lawyers had argued that the buildings were his to treat as he pleased, the jury found he violated the Visual Artists Rights Act, or V.A.R.A., which has been used to protect public art of “recognized stature” created on someone’s else property.

. . . .

[O]n Monday, Judge Block upheld the jury’s decision, and his ruling awarded the artists the maximum damages possible, saying that 45 of the dozens of ruined murals had enough artistic stature to merit being protected. The jury had found that only 36 of the works should be guarded under V.A.R.A.

. . . .

“There have been other instances where graffiti artists have been recognized as deserving protection,” Mr. Nicyper said, adding that courts have ruled that clothing designers who cribbed ideas from graffiti artists were liable for intellectual theft. But the 5Pointz case, he said, was the first time that graffiti and graffiti artists were protected under V.A.R.A.

Link to the rest at The New York Times

PG wonders how the owners of co-op apartments near Central Park will react to artistically-significant graffiti popping up in their neighborhoods.

US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal’

14 February 2018

From the BBC:

The phrase “haters gonna hate” is too “banal” to be copyrighted, a US judge has declared.

Judge Michael W Fitzgerald made the comments while dismissing a copyright case against Taylor Swift.

Songwriters Sean Hall and Nathan Butler sued the star last year, arguing her single Shake It Off stole from their composition, Playas Gon’ Play.

They said the chorus of her song relied on their lyric, “playas, they gonna play, and haters, they gonna hate”.

Although short phrases are generally immune from copyright claims, the writers argued that combining the two thoughts was original enough to warrant protection.

. . . .

“The lynchpin of this entire case is thus whether or not the lyrics ‘Playas, they gonna play, and haters, they gonna hate’ are eligible for protection,” he wrote.

“In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases ‘playas… gonna play’ or ‘haters… gonna hate’, standing on their own, no more creative than ‘runners gonna run’; ‘drummers gonna drum’; or ‘swimmers gonna swim.’

“The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.

“The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection,” Fitzgerald added.

. . . .

“In sum, the lyrics at issue… are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act,” he wrote.

Link to the rest at the BBC

The Shape Of My Heart: A Guide To Chocolate Shape Trademarks For Your Valentine

13 February 2018

From Trademark and Copyright Law:

The past year has been an active one in the chocolate trademark wars, as confectionery giants attempt to use trademark law to protect the shapes of iconic candy products.  In the US, and in many other jurisdictions, companies can protect product shapes or configurations, but only if they are sufficiently distinctive that the design functions as an indicator of source.  Chocolatiers have had varying degrees of success in convincing trademark offices and courts that their confections have attained that status.  In case you would like to give your valentine some sweets that inspire not only romantic feelings but also trademark-themed conversation, here are a few delicious options for your consideration:

Kit Kat

As we have previously reported, confectionery giant Nestlé has been embroiled in a years-long dispute in various jurisdictions with rival confectionery/snack conglomerate Mondelez over trademark protection for Nestlé’s four-fingered Kit Kat chocolate wafer bar.  Last May, the UK Court of Appeal ruled against Nestlé in an appeal of Mondelez’s opposition, finding that the shape of Kit Kat did not function as a “badge of origin” and therefore was not entitled to registration as a UK trademark.  However, the shape is protected as a trademark in other jurisdictions, including Germany, France, Australia, South Africa, and Canada.  Notably, that list does not include Norway, where Mondelez subsidiary Freia has been distributing a lookalike bar called Kvikk Lunsj (“quick lunch”) for nearly as long as Kit Kat has been around.  “Fingers” crossed that Mondelez’s determination in attacking Kit Kat’s product configuration trademark means that it is planning to expand distribution of Kvikk Lunsj to worldwide markets!

. . . .


To be clear, Mondelez is not an enemy of chocolate shape trademarks across the board.  It is the owner of the Swiss brand Toblerone, and has several US trademark registrations for the shape of its triangular “peaks and valleys” chocolate bar, dating as far back as 1971.  Last fall, Mondelez found itself on the defensive end of a UK three-dimensional trademark dispute.  Toblerone sought to cut costs by increasing the spaces between the “peaks” of Toblerone bars, and a UK retail chain, Poundland, announced its intention to capitalize on consumer displeasure with that change by releasing a rival bar called Twin Peaks, which shared a similar shape, except that each triangle had two “peaks.”  Mondelez sent a cease-and-desist letter, and Poundland countered by seeking to cancel Mondelez’s UK registration for the Toblerone shape, arguing that it had lost its distinctive character as a result of the “austerity” redesign.  The parties ultimately reached a settlement, pursuant to which Poundland was allowed to sell the stock it had already produced, in distinctive packaging, as long as it changed the shape of its “twin peaks” chocolate bar once that stock was sold.

Link to the rest at Trademark and Copyright Law

PG says you can be the judge.

Remember, the KitKat decision was that the KitKat shape “did not function as a ‘badge of origin.'”

KitKat vs. Kvikk-Lunch


Wikimedia Commons



And Poundland said the traditional Toblerone shape had lost its distinctive character as a result of the “austerity” redesign.

Toblerone v. Poundland

Here’s the pre-austerity Toblerone:

Wikimedia Commons


And here is the austerity AKA “Brexit” Toblerone sold in the UK:

By Ashley Pomeroy – Own work, CC BY 3.0,


And Twin Peaks from Poundland


Plagiarism Software Unveils a New Source for 11 of Shakespeare’s Plays

10 February 2018

From The New York Times:

For years scholars have debated what inspired William Shakespeare’s writings. Now, with the help of software typically used by professors to nab cheating students, two writers have discovered an unpublished manuscript they believe the Bard of Avon consulted to write “King Lear,” “Macbeth,” “Richard III,” “Henry V” and seven other plays.

The news has caused Shakespeareans to sit up and take notice.

“If it proves to be what they say it is, it is a once-in-a-generation — or several generations — find,” said Michael Witmore, director of the Folger Shakespeare Library in Washington.

The findings were made by Dennis McCarthy and June Schlueter, who describe them in a book to be published next week by the academic press D. S. Brewer and the British Library. The authors are not suggesting that Shakespeare plagiarized but rather that he read and was inspired by a manuscript titled “A Brief Discourse of Rebellion and Rebels,” written in the late 1500s by George North, a minor figure in the court of Queen Elizabeth, who served as an ambassador to Sweden.

. . . .

In reviewing the book before it was published, David Bevington, professor emeritus in the humanities at the University of Chicago and editor of “The Complete Works of William Shakespeare (7th Edition),” called it “a revelation” for the sheer number of correlations with the plays, eclipsed only by the chronicles of Holinshed and Hall and Plutarch’s “Lives.”

. . . .

Martin Meisel, professor of dramatic literature emeritus at Columbia University, said in another review that the book is “impressively argued.” He added that there is no question the manuscript “must have been somewhere in the background mix of Shakespeare’s mental landscape” while writing the plays.

Mr. McCarthy used decidedly modern techniques to marshal his evidence, employing WCopyfind, an open-source plagiarism software, which picked out common words and phrases in the manuscript and the plays.

In the dedication to his manuscript, for example, North urges those who might see themselves as ugly to strive to be inwardly beautiful, to defy nature. He uses a succession of words to make the argument, including “proportion,” “glass,” “feature,” “fair,” “deformed,” “world,” “shadow” and “nature.” In the opening soliloquy of Richard III (“Now is the winter of our discontent …”) the hunchbacked tyrant uses the same words in virtually the same order to come to the opposite conclusion: that since he is outwardly ugly, he will act the villain he appears to be.

“People don’t realize how rare these words actually are,” Mr. McCarthy said. “And he keeps hitting word after word. It’s like a lottery ticket. It’s easy to get one number out of six, but not to get every number.”

. . . .

“At its core, this remains a literary argument, not a statistical one.” The book contends that Shakespeare not only uses the same words as North, but often uses them in scenes about similar themes, and even the same historical characters. In another passage, North uses six terms for dogs, from the noble mastiff to the lowly cur and “trundle-tail,” to argue that just as dogs exist in a natural hierarchy, so do humans. Shakespeare uses essentially the same list of dogs to make similar points in “King Lear” and “Macbeth.”

. . . .

Mr. McCarthy found a reference to the manuscript by George North, a likely cousin of Thomas, online in a 1927 auction catalog, which noted it would be “extremely interesting” to compare certain passages with Shakespeare. He and Ms. Schlueter scoured libraries and archives for a year before enlisting the help of a manuscript detective, who studies rare documents and traced it to the British Library, which had purchased it in 1933. (The manuscript was filed under an obscure shelf mark, which made finding it difficult.)

In 1576, North was living at Kirtling Hall near Cambridge, England, the estate of Baron Roger North. It was here, Mr. McCarthy says, that he wrote his manuscript, at the same time Thomas North was there possibly working on his translation of Plutarch.

The manuscript is a diatribe against rebels, arguing that all rebellions against a monarch are unjust and doomed to fail. While Shakespeare had a more ambiguous position on rebellion, Mr. McCarthy said he clearly mined North’s treatise for themes and characters.

One of the most compelling is Jack Cade, who led a failed popular rebellion against Henry VI in 1450. Shakespeare describes Cade’s final days in “Henry VI, Part 2,” in which he says he was starving and eating grass, before he was finally caught and dragged through the street by his heels, his body left to be eaten by crows. Scholars have long thought that Shakespeare invented these details, but all of them are present in a passage from North’s “Discourse” in which he inveighs against Cade and two other famous rebels. Mr. McCarthy and Ms. Schlueter argue that Shakespeare used those details to make Cade into a composite of the three.

Link to the rest at The New York Times

The Guardian (which may well be more reliable than the NYT these days) has an article on the same subject and is a bit more skeptical concerning Mr. North’s contribution to Shakespeare:

UCL English professor John Mullan was also cautious about the significance of the discovery. “This book might well have been read by Shakespeare,” said Mullan. “But there’s an eight-volume hardback work about sources of Shakespeare. And it’s a chastening experience – when you look at a particular play, Henry IV Part I for example, it has nine lengthy chunks from different works. They’re labelled as source, or possible source, or probable source, or historical analogue, or analogue. There are different degrees of ‘sourciness’.”

Link to the rest at The Guardian

The Shape of Water’s Ongoing Plagiarism Battle

8 February 2018

From Plagiarism Today:

Two weeks ago, we took a look at the plagiarism controversy over The Shape of Water, the new film written and directed by Guillermo del Toro.

At the time, the controversy focused on similarities between The Shape of Water and The Space Between Us, a 2015 short film by students at the Netherlands Film Academy.

But, while the similarities were striking, there was no shortage of evidence that del Toro had been working on The Shape of Water as early as 2011, well before The Space Between Us was released.

With so much evidence that The Shape of Water could not have plagiarized the short film, the conversation shifted to exactly why the arguments felt so convincing. In short, the story became a useful example to discuss why some things in filmmaking felt like plagiarism when we knew for certain they could not be.

. . . .

Two days after my original post, the estate of playwright Paul Zindel publicly accused del Toro of plagiarizing Zindel’s 1969 play, Let Me Hear You Whisper.

The two works do have a great deal of overlap. Both stories are set in the sixties and feature a female custodian who befriends and eventually falls in love with a creature held captive in the military laboratory where she works. In both stories she frees the creature (using a shopping cart) in order to save it from vivisection after the creature fails to cooperate with its captors.

While that’s a lot of overlap, there are several key differences too. For one, in Whisper the creature is a dolphin and in Water it’s a humanoid creature. Also, the endings of the two works are drastically different.

. . . .

Fox Searchlight has denied that del Toro read Let Me Hear You Whisper, but there is evidence that Daniel Kraus, who pitched the story idea to del Toro in 2011, was not just aware of Zindel’s work, but an admirer.

This makes it almost certain that Kraus was aware of Let Me Hear You Whisper, even if del Toro was not.

. . . .

Earlier this week, French director Jean-Pierre Jeunet accused del Toro of plagiarizing a scene in The Shape of Water from his 1991 film Delicatessen.

Both scenes feature two characters, one male and one female, sitting side by side and creating an impromptu rhythm to the beat of a musical playing on TV. In Delicatessen, the two use squeaks and creaks in a bed they are seated on to make the music while, in The Shape of Water, the two are seated on a sofa using their shoes to tap out the rhythm.

. . . .

However, this is a very different plagiarism allegation than the first one. It doesn’t look at the entire plot of the film and, instead, focuses on less than a minute of both works.

But, while both scenes feature characters making an impromptu rhythm to a musical on the TV, that’s roughly all they have in common. How they make the rhythm, where they’re sitting and the beat they make are all very different.

. . . .

Still, as noted by Sabine Jacques in The Conversation, a copyright infringement case by the estate against del Toro would have some significant challenges. Not only is it unclear if the similarities between the two works are copyrightable or that they are strikingly similar to one another to be considered a derivative work, but del Toro heavily documented the creation of the film and may be able to show it was an independent creation.

. . . .

There’s a terrible and overtly false expression about plagiarism that reads, “To steal from one person is plagiarism; to steal from many is research.”

As obviously untrue as that is (plagiarism deals with citation and not the number of sources) it has a kernel of wisdom when it comes to fiction.

Every trope we have started out as an original idea at some point, even if it was thousands of years ago. However, as other creators used it, built upon it and modified it, it went from being an original idea to being a basic building block of storytelling. However, the transition from original work to trope is not a smooth or clear one. In fact, it’s one that’s different for nearly every person interpreting it.

Link to the rest at Plagiarism Today

A guide to ‘big money’ art disputes

7 February 2018

From Spears:

The arcane world of art disputes occasionally emerges from the shadows, burns media oxygen, then retreats back into the crepuscular gloom. Among those who operate in this world are two men – one a lawyer, the other an expert witness – who have collaborated on a couple of significant cases and are therefore able to offer insights into its workings.

Rupert Boswall, senior partner at Reynolds Porter Chamberlain (RPC), and Guy Stair Sainty, a Mayfair art dealer, first collaborated in the Onians estate case against Sotheby’s in the late Nineties. The estate of Suffolk pigswill dealer Ernest Onians sued Sotheby’s for selling a painting, The Sack of Carthage, which it had attributed to Pietro Testa but turned out to be a lost work by Poussin, The Destruction and Sack of the Temple of Jerusalem. Sotheby’s had told the Onians estate it would fetch £15,000, but a London gallery bought it for £155,000 on the recommendation of art historian Sir Denis Mahon. It was subsequently recognised as a Poussin by the Louvre and was sold to the Rothschild Foundation for £4.5 million.

‘Sotheby’s fought the case very, very hard,’ says Boswall. ‘We acted for the estate against Sotheby’s, Freshfields acted for Sotheby’s, and that was when I found Guy, who was brilliant in explaining the procedures that auctioneers and dealers follow, which are essentially the same, and why he believed Sotheby’s had gone wrong.

‘We had Guy speaking to how Sotheby’s should have handled it; we had an expert speaking on whether it was a Poussin or a Testa; we had an expert on restoration; and we had a technical expert on the consistency of the pigment. That was an all-singing, all-dancing dispute and I’ll never do a case like that again. Also, we did it on a no-win no-fee basis, because the estate didn’t have any money, and we actually spent all of the estate buying a legal expenses policy to guard against losing to Sotheby’s.’ The case was settled shortly before trial.

Link to the rest at Spears

PG says the variety of disputes over intellectual property is both entertaining and broad.

However, it can’t compete with torts.

A tort is “a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.” Because damages arising under an act resulting in civil legal liability are often covered by insurance, there may be questions as to whether the wording of the insurance policy means the insurance company must pay the injured party – whether the insurance provides coverage for the acts leading to a particular injury.

From Coverage Opinions:

“In May 2012, [James] Yaney’s friend, Jason Vantilburg, in anticipation of the birth of his first child, asked Yaney to host a party to celebrate. Yaney and Vantilburg fashioned the party into a ‘diaper shootout,’ where guests could bring diapers for the new baby and enjoy an afternoon shooting guns in Yaney’s backyard. As a ‘grand finale’ to the party, they also decided to blow up an old refrigerator.

In preparation, Yaney used his [Yaney] Motorsports truck to haul the refrigerator from Vantilburg’s home to his property. He then used his trailer to tow a box van to his backyard so that guests had a target to shoot. On the day of the event, Yaney set up the Motorsports truck and trailer as a staging area for guns and ammunition. ***

Towards the end of the event, Yaney and Vantilburg decided it was time to blow up the refrigerator. They hauled the refrigerator from Yaney’s pole barn into the backyard. Guests stood behind tables fifty meters away from where the refrigerator was located. Vantilburg moved into position behind his rifle, fired at the explosives [H2] inside the refrigerator, and detonated them. The refrigerator immediately blew apart and sent shrapnel flying across the yard. A piece of shrapnel hit (guest) Plank–Greer’s hand, nearly severing it.”

I know. It takes your breath away.

. . . .

 Incidentally, if you are interested, the actual coverage issue involved whether Yaney’s policy with Auto-Owners, for his Auto Repair Shop, provided coverage. More specifically, did the incident arise with respect to the conduct of Yaney’s business. Yaney had invited customers to the party and Yaney discussed his business with Plank-Greet, offering to weld or manufacture a hitch for her car and a bike rack, and he gave her a price for new brake pads.

The court held that: “Here, at most, Yaney’s party mixed personal activities and business, with business being incidental (and, it would appear, coincidental). Yaney used the Motosports truck and trailer to haul items to his property for the party, and spoke with guests, including plaintiff, about his business. Yaney, however, did not co-host the party to promote his business: he held the party to help his friend, Jason Vantilburg, celebrate the impending arrival of his baby. Moreover, focusing solely on the event that gave rise to plaintiff’s injury—blowing up the refrigerator—there is no question that it was done for the guests’ entertainment and bore no relationship to Yaney’s business. Because Yaney was not acting solely with respect to his business, his activities that day were outside the scope of his insurance contract with Auto–Owners. Accordingly, Auto–Owners is not obligated to provide coverage to Yaney for any of Plank–Greer’s allegations.”

Link to the rest at Coverage Opinions

PG warns one and all that blowing things up for recreational purposes is almost never going to be covered by liability insurance.

ISPs Don’t Get Copyright Shield Without Enforcement of Meaningful Repeat Infringer Policy

2 February 2018

From the Hollywood Reporter:

In a key decision in a landmark piracy case, the 4th Circuit Court of Appeals on Thursday issued a mixed ruling when examining a $25 million verdict in favor of BMG Rights Management against Cox Communications over piracy by the ISP’s users. The entertainment industry got a huge victory when the appeals court upheld a federal judge’s conclusion that the safe harbor provision of the Digital Millennium Copyright Act requires meaningful implementation of a policy that terminates the service of repeat copyright infringers.

. . . .

The dispute emanates from a lawsuit brought by BMG, which administers the rights to works by David Bowie, Bruno Mars, Frank Ocean and many other artists. BMG had hired Rightscorp to flag piracy and send Cox notices. Rightscorp detected 1.847 million instances of infringement, but Cox had what a judge characterized as essentially a 13-strike policy that was found insufficient. It was alleged that Cox really maintained an “under the table policy purporting to terminate repeat infringers while actually retaining them as high-speed internet customers.”

. . . .

On Thursday, 4th Circuit judge Diana Motz writes the opinion that will be closely examined by those looking to figure out an ISP’s responsibilities for the copyright infringing actions of its users.

The DMCA provides some armor for tech companies that respond expeditiously to takedown requests. One of the requirements, though, is that the ISP has to have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers.”

Cox urged a reading that would be generous to ISPs. Specifically, the company argued that “repeat infringers” means adjudicated repeat infringers, or people who have been held liable in court for multiple instances of direct copyright infringement.

Motz notes that the statute doesn’t define “repeat infringers” but nods to the use of “alleged infringer” elsewhere in the law plus legislative history to come to the conclusion that Cox’s interpretation is wrong.

. . . .

Then, turning to Cox’s conduct, Motz determines that the federal judge was right to flag this ISP’s repeat infringer policy as lacking.

At a minimum, she writes, an “ISP has not ‘reasonably implemented’ a repeat infringer policy if the ISP fails to enforce the terms of its policy in any meaningful fashion. Here, Cox formally adopted a repeat infringer ‘policy,’ but, both before and after September 2012, made every effort to avoid reasonably implementing that policy. Indeed, in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.”

Motz adds that failure to implement a consistent and meaningful repeat infringer policy essentially means it has no policy and can’t be entitled to a safe harbor defense.

Link to the rest at the Hollywood Reporter

Copyright board ruffles AA’s feathers by rejecting logo copyright again

30 January 2018

From USA Today:

Even after a go-around, American Airlines couldn’t clear the relatively low threshold to copyright its logo adopted in 2013, the U.S. Copyright Office’s review board has ruled.

“A mere simplistic arrangement of non-protectable elements does not demonstrate the level of creativity necessary to warrant protection,” Catherine Zaller Rowland, senior adviser to the register of copyrights, said in a five-page explanation called “the final decision in this matter.”

The airline already has the image trademarked, to prevent another U.S. carrier or tourism entity from using the image in its marketing. But a copyright would have offered longer and broader protection internationally, if it were approved.

. . . .

The logo looks like a white eagle’s head poking through a diagonal swoosh with blue on top and red on the bottom. The carrier adopted the image after combining with U.S. Airways to become the world’s largest airline.

American filed an application June 3, 2016, to register the logo. But a registration specialist refused the registration in a letter Oct. 4, 2016, by finding it “lacks the authorship necessary to support a copyright claim.”

American disputed that finding and requested a reconsideration in a letter Dec. 20, 2016. The airline argued that the logo “far exceeds the extremely low level of creativity required to sustain a copyright claim,” according to the letter from Andrew Avsec, an intellectual-property lawyer with Brinks Gilson & Lione.

. . . .

But after re-evaluating the request, the office again rejected it by concluding it “does not contain a sufficient amount of original and creative artistic or graphic authorship to support a copyright registration,” according to an April 12, 2017, letter from Stephanie Mason, an attorney-advisor.

. . . .

[T]he copyright board’s decision Jan. 8 repeated a longstanding requirement set forth in the Copyright Act that prohibit registration for “familiar symbols or designs; (and) mere variations of typographic ornamentation, lettering or coloring.”

“Further, use of the colors of the United States flag (red, white, and blue) are exceedingly common and do not lend themselves to arguments that the work’s design choices were especially creative,” Rowland wrote. “In any event, even if a bird motif were unusual in this context, the work falls below the threshold for creativity required by the Copyright Act.”

Link to the rest at USA Today

And, so you can judge for yourself, here’s a copy of American Airlines’ new logo (Nominative fair use because the trademark is shown in both the OP and here in connection with a discussion of the trademark design. Plus PG does not operate an airline plus he’s not that taken with AA’s logo design and suggests an alternative below which contrasts with AA’s trademark.):

As an alternative trademark, here’s what comes to PG’s mind when he thinks about American Airlines:

Yay, AA!!!!!!!! Photos from Unsplash

Image rights and the unauthorized use of one’s own portrait on cigarette packs

23 January 2018

From The IPKat:

Can someone’s own image be used without permission?

This question may have different answers, depending on both the context in which the relevant image is used and the legal system considered. With particular regard to the latter, in countries that envisage ‘image rights’ (or publicity rights), the availability of protection may be even irrespective of the context in which one’s own image is being used.

Italian law

This is for instance the case of Italy which, similarly to other continental European jurisdictions, has a long-standing history of protecting image rights.

. . . .

Article 96 of the Italian Copyright Act states that – subject to some limitations pursuant to Article 97 thereof – the portrait of a person cannot be put on display, reproduced or used commercially without their consent.

. . . .

A man from Ischia (one of the islands in the Naples Gulf), Maurizio Plescia, was quite shocked when he found out that his image was reproduced on the cigarette packs marketed by different multinationals, as part of what the EU Tobacco Products Directive calls ‘combined health warning’, ie health warnings consisting of a combination of a text warning and a corresponding photograph or illustration illustrating the risks of smoking.

The image of Plescia represented him while hospitalized in Colombia. He had gone there to visit his former partner and – further to certain breathing issues – had taken a medication to which he happened to be allergic. Together with the initial symptoms of pneumonia, such allergic reaction resulted in his hospitalization.

Apparently while he was lying in his hospital bed, someone took a photograph of him. Subsequently such photograph was included in the picture library administered by the EU Commission pursuant to Schedule 2 of the Tobacco Products Directive, which contains images to be used for the marketing of tobacco products.

. . . .

There is abundant case law concerning the unauthorized use of one’s own image, and this blog has reported on decisions which have found an infringement of image rights even lacking use of one’s own actual image.

Protection has been granted also in instances relating to the unauthorized use of one’s own image in situations in which one was filmed during a public event. For instance, the Italian Supreme Court has held that a TV programme could not use one’s own image, captured during a football match, after that event’s current character has ended (in this specific case, 6 years after the match).

Link to the rest, including images of the offending cigarette packs displaying Mr. Plescia’s photo (in which he looks really terrible), at The IPKat

The lesson for indie authors is that, while a photographer has a copyright on photos he/she creates, if the photos show an identifiable individual, the consent of the individual for his/her image to be used for a commercial purpose (a book cover, for example) should be obtained. The photographer’s license to use the photo doesn’t, by itself, cover all contingencies.

As with so many other things, consent in writing, signed by the subject in the photo, is always a good idea, sometimes a very, very good idea.

There are loads of Model Release Forms available online. One that might be worth examining is from the American Society of Media Photographers. As the ASMP website states, this is a “simplified” form. Additional provisions may be desirable for non-standard release circumstances. For example, nude photos would be one example of non-standard circumstances.

For cute kid pictures, a parent or guardian’s written and signed release in proper form should be obtained.

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