By this time, almost everyone is aware of the conflict that arose between Jeff Koons and the makers (imm Living)/retailers (Park Life) of balloon dog bookends. As the artist behind the huge balloon dog statutes, Mr. Koons took umbrance with others selling bookends in the shape of balloon dogs. From his point of view, as I imagine it to be, the makers of the bookends are imitating his design and infringing on his copyrights. From the point of view of the bookend creators, they are reproducing, in bookend form, a subject in the public domain. As my previous post [link] was on the basics of the public domain, this would be the appropriate time to look at the incorporation of public domain material into a subsequent work.
Like hearts on Valentines, long balloons are just meant to be twisted into dogs. Though he exercised a skill, and one I don’t possess, the clown who turned the balloon into the familiar dog shape does not have a copyright in the result. Anyone may reuse the element of the traditional balloon dog – it is not protected by copyright, and it is part of the public domain. Jeff Koons sampled the public domain and reused the balloon dog concept. However, Koons did not blow up a balloon and manipulate it to look like a dog. He did what no one else had done before; he took the element of the balloon puppy, and he made it out of metal and made it enormous. Jeff Koons created an original work entitled to copyright protection using a subject from the public domain.
Case in point, incorporating public domain material is possible, but as here, your work may not receive the copyright protection you are looking for. Because the balloon dog is a concept from the public domain, it may be freely used. Jeff Koons used it to make a mesmerizing sculpture (up close in LACMA, I couldn’t stop looking at it), and imm Living used it to make kitschy bookends. It is unsurprising that Koons would balk a bit at others selling what to him seems to be Koons memorabilia without a license. Likewise, it is interesting to note that the bookends followed the statute, though not as miniature, bookend-shaped reproductions. Thankfully, this is how copyright works. By keeping public domain material in the public domain, we are free to inspire each other. Creativity would be significantly stifled if every time an element is reused it is secured by copyright, which is also why the fashion world is fiercely divided on whether to extend copyright protection to designs. However, that is a saga for another day.
As is appropriate, copyright protects originality. Jeff Koons borrowed the balloon dog theme from the public domain when creating his statutes. Imm Living borrowed from the public domain in creating its bookends. Had Mr. Koons made a dog statue of original design instead of in the familiar balloon dog shape, he would be afforded much more protection. Every element of his work would be protected, the size, design, etc., as he contributed all of it. In that case, making bookends would not be a re-imagination of a public domain concept, but a derivative work.
What is the Public Domain?
Before explaining the details of copyright and the public domain, one must have a handle on what the public domain is. For me, the words “public domain” conjure up a place where material is stored. In reality, the public domain is better likened to the reverse – wide open spaces, available to everyone. Continuing the metaphor, those wide open spaces are limited only by places storing information protected by copyright.
What does it mean for material to be in the public domain?
Material labeled as being in the public domain may arrive there in a number of ways, one of which is exclusion from copyright. Certain types of work are not entitled to copyright protection, such as mere lists or procedures – a recipe is an excellent example of this. Material that is composed entirely of common information with no original authorship, including tables from public sources, tape measures, or calendars, is also excluded from the protections of copyright. Works whose copyright protection has expired are also in the public domain. In the United States, any work created before 1923 is no longer protected, and that marks the end of the bright-line rules. After 1923, the copyright waters muddy, and it is very difficult to determine with any certainty the copyright status of a work. For works created in or after 1978, copyright protection expires 70 years after the author’s death or the shorter of 95 years from publication or 120 years from creation in the case of works-for-hire or anonymous works. Robert B. Parker, the prolific mystery author, passed away last year. The majority of his novels were written between 1978 and 2010; however, regardless of when they were published after 1977, all of the novels will be entitled to protection through 2080. Under current US copyright law, one novel may be protected for 100 years, another for 70, and the novels published before 1978 may be given a different amount of protection altogether.
May one use the material with impunity?
Before reusing material one did not create, (and he or she has not obtained permission and is not entitled to an exception or defense), an individual should ensure that the material is in the public domain. Keep in mind – some material may be excluded from copyright protection, but may not be in the public domain, as it is otherwise entitled to protection through other federal or state laws or through contractual agreements. Assuming a determination that the work is part of the public domain, one may reuse as desired. The copyright law limitation as to derivative works does not apply.
Is it possible to register a copyright in public domain material?
The short answer to this question is, no. Once a work is in the public domain, it is there to stay. However, this does not mean that an original work that builds on public domain material is not entitled to copyright protection. One may register a copyright in the new work, but protection will be limited to the newly-created portions and will exclude any public domain material.
How does one determine what is in the public domain?
As indicated in a previous question, if the work was created during a certain range of years, it may be very difficult to track down the copyright status. Renewals, extensions, changes in the law, and untraceable authors come together to require complex calculations and searches. Unfortunately, there is no online copyright database for records prior to 1978.
Still have questions? Leave a comment, and I’ll address additional issues in a subsequent post.
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What is a trademark?
In previous posts, I have discussed generic marks, and how to prevent your mark from “genericide.” For the most part, this assumes that your company has registered its trademarks, which raises the following questions, what is a trademark, and why register it? The basic definition of a trademark is using a name or mark to signify the source of your goods or services. The purpose of the trademark is to suggest to consumers, these are the type of goods (or services) you will only find from, “Catchy Name.” If you use such a name, symbol, or slogan then you may want to consider federal registration of that mark. Registration magnifies your protection by giving you more and greater rights in your mark and by making it easier to enforce those rights.
Federal Registration
Being the first to use a mark or name to identify your goods or services will give you priority in that name for the types of goods and services you identified, which means that putting Catchy Name on labels of your line of beauty products and selling those products will give you the right to exclusively use Catchy Name to identify beauty products. However, your right to exclude others from using Catchy Name is limited to the geographic region in which you have sold those products. Extending the geographic reach of your trademark protection is one of the benefits of federal trademark registration.
Protection throughout the US is one benefit conferred by trademark registration with the USPTO [United States Patent and Trademark Office.] There are many others, and listed below are few of them:
- Legal presumption of your ownership of the mark: Your trademark registration is evidence of your priority in the trademark.
- Public notice of your claim of ownership: Others will be, or should be, aware of your rights to the mark due to publication of your registration or listing in the USPTO databases.
- Ability to make a federal case out of it: Without a federally registered trademark, you are not entitled to sue in federal court to enforce your rights.
- Prevent importation of infringing goods: Recordation of your registration with the US Customs and Border Protection will confer the right to keep infringing goods out of the US.
- Use of symbol: Use of the registered R symbol is only allowed for marks that are federally registered.
- Foreign Registration: You may use your US registration to facilitate registration in other countries.
If you are an individual or a business using a mark to identify the source of your goods or services, then consider registering your trademark. You may be a good candidate for trademark registration and not even know it; for example, a band provides entertainment services or sells merchandise, so federal registration would entitle the band to nationwide, exclusive rights to its band name.
For more information, check out the US Patent and Trademark Office, uspto.gov. If you have questions or decide to register and would like an attorney to take care of it for you, give our office a call: 888.206.1406.
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In just a couple of weeks, I will be participating in a panel discussion on how nonprofits may, should and shouldn’t incorporate social media strategies. I’m the small fry of the group, as the other panelists are Dennis Kennedy (@denniskennedy), Pete Salsich (@petesalsich), and Julie Ann Broyles. It should be fun and informative – I am sure I’ll learn a few things! This is the short description for the event:
Online Communities for Your Nonprofit: Legal Aspects of Social Media
March 10 – 3:00PM – 4:30PM
A panel of information technology attorneys from the St. Louis Corporate Counsel Association Pro Bono Committee will discuss the potential benefits of social media for nonprofits and provide an understanding of the legal issues and risks involved. They will suggest ways to create a successful online community without unhappy surprises.
Call 314-539-0357 to reserve your seat.
Schlafly Branch of the St. Louis Public Library, Saint Louis, Missouri – see the calendar here.
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Here is an interesting sampling of the lawsuits filed throughout the life of the “Heros.”
Romantics v Activision– filed in 2007 – 80s band was irked that a lookalike/soundalike band singing “What I like about you” appeared in Guitar Hero Encore: Rocks the 80s, and they sued for infringement of their right of publicity. Status – Dismissed in favor of Activision.
Samuel Livingston v Activision– filed in 2007 – Not happy that Guitar Hero III only produced mono sound, this gamer sued to “enjoin Activision, Inc. from continuing to market and represent to its customers and to the public that it[s] Guitar Hero III video game for the Wii gaming console is capable of producing Dolby Pro Logic II surround.” Status – Settled, and replacement discs were supplied to customers experiencing the same issue.
Activision v Gibson – filed in 2008 – Gibson licensed its guitars/likenesses for use in Guitar Hero, then realized it had a patent for a “system and method for generating and controlling a simulated musical concert experience.” The court found that Gibson’s patent was for a musical instrument, not a toy that represents something else, a definition for the Guitar Hero controller. Status – Dismissed in favor of Activision.
Harmonix v Activision– filed in 2007 – Harmonix files suit over the amount due the developer in disputed Guitar Hero royalties. The issue stems from a two tier royalty system based on whether Harmonix developed subsequent games or the games were developed by another building on Harmonix technology. Status – Settled.
No Doubt v Activision– filed in 2009 – No Doubt did not appreciate that Band Hero could be unlocked to allow band member avatars to perform songs written by other bands, such as Gwen Stefani singing “Honky Tonk Woman.” No Doubt, disgusted, sued based on breach of contract. Status – still moving forward.
Patent Compliance Group v Activision– filed in 2010 – This patent watchdog group accused Activision of false patent marking, saying the patents referenced were not relevant to the products on which they appears, and made a federal case out of it. Status – Dismissed by Plaintiff. (Anyone having information on the impetus behind the dismissal – let us know).
Most recently, Axl Rose v Activision – filed in 2010 – Guitar Hero III featured Slash, enough said.
Activision even had to contend with threatened lawsuits. The most prominent of which was Courtney Love’s intimation of imminent legal action, implied by almost unintelligible tweets, for the use of Kurt Cobain’s image in Guitar Hero 5.
Though “The Suits” all agree that the franchise was no longer performing well in the marketplace, especially compared to the Call of Duty franchise (anecdotal evidence – a number of relationships have called it quits due to the popularity of Black Ops), the many legal issues that arose during the course of Activision’s music-based video games may be another reason to close the door on the Guitar Hero legacy.
