Category Archives: Copyright

Fashion Copyright Protection

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Harvard law professor Jeannie Suk writes an opinion piece in the NY Times about the Louboutin lawsuit, connecting the red sole trademark litigation with the absence of copyright protection for fashion:

It is time for Congress to address directly the fusion of practicality and beauty that makes fashion such a compelling medium of expression and a profitable creative industry, one that merits its own limited industry-specific protections. Otherwise, colorful as they are, lawsuits like the red sole case are likely to compound the uncertainty that results from the absence of statutory delineation of fashion design protection — and invites more lawsuits.

Johanna Blakley, managing director of USC’s The Norman Lear Center, argues in her TED talk (via Marty Schwimmer) that it is the absence of copyright law that is responsible for the vibrancy and success of the fashion industry:

Because there’s no copyright protection in the fashion industry, fashion designers have actually been able to elevate utilitarian design, things to cover our naked bodies, into something we consider art. Because there’s no copyright protection in this industry, there’s a very open and creative ecology of creativity. Unlike their creative brothers and sisters who are sculptors or photographers, or filmmakers or musicians, fashion designers can sample from all their peers’ designs, they can take any element from any garment from the history of fashion and incorporate it into their own design.

Fashion design is difficult to do well, and it can be demoralizing to see your hard work and inspiration used by someone else without permission. On the other hand, it would be dispiriting and make design even harder if you had to constantly worry about infringement or have to consult your copyright attorney to get clearance for each season’s new designs.

 

Valuing Musical Artists

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An interesting and insightful blog article on the pricing of digital music by Jessica Suarez of WNET:

Is there a significant difference between paying $5 for 10 songs and 99 cents for one? Perhaps not, except that at 99 cents you are below that threshold. Marnie Stern, an excellent guitarist and giver of opinions, thinks the danger is that “below the threshold of consideration” might also mean below the threshold of giving a crap. I asked her how much she’d like to charge for her album: “It all seems pretty moot because even if I lowered the price to five bucks, people are still going to download it for free anyway.” Since “free is better than any price you could list… that’s what the majority of people listening to music are gonna be looking for,” she told Riff City. But price isn’t entirely meaningless: “I do think that if people had to buy it, they would appreciate it more, spend some time with it, and value it a bit more.”

I remember the days of shelling out $16 for a compact disc based on having heard one or two songs. Often most of the album was filler. If the music wasn’t good, it didn’t matter that I had spent all that money. Who’s going to spend time listening to music they don’t like just because they spent more? Connecting with your fans and providing value to them, not price-setting, is probably a better way to go these days. (For the record, I’m not saying that illegal file-sharing is OK. Copyright plays a valuable and essential role in protecting artists. But the days of relying on recordings as a primary income stream are mainly over for most musicians.)

Fan Fiction

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Lev Grossman writes about fan fiction in Time, exploring the issue of copyright and the rights of authors:

There are plenty of major writers who can’t abide fan fiction based on their work. They post statements about it on their websites. Orson Scott Card, author of the classic Ender’s Game books, has written, “I will sue, because if I do NOT act vigorously to protect my copyright, I will lose that copyright … So fan fiction, while flattering, is also an attack on my means of livelihood.” Anne Rice is every bit as vehement: “I do not allow fan fiction. The characters are copyrighted. It upsets me terribly to even think about fan fiction with my characters. I advise my readers to write your own original stories with your own characters.”

The legal argument against fan fiction isn’t actually very strong. The scenario Card describes, in which an author’s rights are diminished because he or she doesn’t actively defend them, is associated more with trademark than with copyright. But in practice, a fan-fiction writer who receives a cease-and-desist letter has almost no choice but to comply. No fan wants to go through the bother and expense of litigating against a celebrity or a major corporation. As a result, no definitive legal precedent exists.

But there’s more to argue about than legal niceties. A lot of authors feel emotionally and viscerally that nobody else has any business using their characters. George R.R. Martin, author of A Game of Thrones, writes on his website, “My characters are my children … I don’t want people making off with them, thank you. Even people who say they love my children.” Ursula K. Le Guin, another giant of the fantasy canon, writes, “To me, it’s not sharing but an invasion, literally — strangers coming in and taking over the country I live in, my heartland.”

Copyright law is an exception to our free speech rights, Constitutionally provided as an economic incentive for authors to create works. Since copyright is an exception to our fundamental value of not having the government interfere with our speech without a really good reason, authors and artists should think long and hard about whether this curb on free speech is properly balanced against the emotional connection they have with their work. And Grossman is right; Orson Scott Card’s statement on copyright law is incorrect. Failure to enforce a copyright does not mean you will lose it.

Nothing comes between me and my Euphoria

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The Register-Guard reports that Euphoria Chocolate Company of Eugene, Oregon has for the second time sued and settled with the fashion brand/studio Calvin Klein. Euphoria Chocolate had no problem with the Euphoria brand name applied to perfume–the goods are unrelated and consumers are unlikely to draw a connection between the confectioner and the fashion company. But Calvin Klein bundled chocolates with its Euphoria perfume as part of a holiday promotion in 2009 and then did it again this year, in violation of a previous settlement agreement. The article notes both products can have the same brand name because Calvin Klein has a trademark in one international classification while Euphoria Chocolate Company has a trademark in another classification. Reading this did not give me a feeling of delirious happiness, however, because classifications have no bearing on whether marks are confusingly similar. Continue reading →

Facebook Attempts to School Teachbook

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Facebook has sued Teachbook for trademark infringement. Teachbook is an online networking site for teachers allowing users to share lesson plans and instructional videos. Greg Shrader, Teachbook’s managing director, complained that Facebook is “effectively … bombing a mosquito here, and we’re not sure why they want to do that.” Although Shrader is trying to arouse sympathy in the court of public opinion, in the court where actual law applies, Shrader gets a failing grade for explaining why a company should not get sued for trademark infringement. Continue reading →

A Cautionary Tale

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A credit union in Billings, Montana was forced to change its name of Avanta Federal Credit Union to Altana Federal Union.  When choosing its name, the credit union only checked with the state of Montana and the National Credit Union Association, but failed to obtain an opinion from a trademark attorney regarding the availability of the name.  As a consequence, the credit union must spend about $80,000 to change all its stationary and signs after Advanta Bank in Utah objected to the similarly sounding and spelled mark.

The Gazette article notes that Avanta and Advanta are “neological” names.  While it’s true that coined or fanciful marks can be good choices for trademarks, both of these appear to be closely derivative of the word ‘advantage’.  Chances are if you’ve thought of a form of ‘advantage’, so has someone else, which increases the chances that your new brand may be infringing a prior trademark use. Originally published June 19, 2009.

Update: unfortunately, Advanta’s efforts to protect its brand couldn’t prevent it from going on the FDIC’s failed bank list.