The interviewer said that when you make a show, you’re either getting sued for using the product without permission or getting paid to use it with permission.  And so, the discussion moved into talking about all the gaffer’s tape that gets used in television today because the person on camera is wearing a hat whose manufacturer hasn’t cleared its use with the studio, or the maker of the drink that the reality star is chugging doesn’t have a rights agreement with the broadcaster.  With its abundance of reality shows, MTV has become a master at the art of wrapping a soda can in paper, blurring out a t-shirt, and taping over shoe logos.  They do this for a variety of reasons, but most frequently because they haven’t cleared the ability to display trademarks and copyrights recorded on film.  With the huge number of logos and copyright-protected works that are displayed in a reality show, an effort to obtain licenses for each rights owner would be monumental.

As I’ve discussed before, copyright protection doesn’t currently extend to clothing itself.  Because clothing helps satisfy the basic need of shelter, Congress says that it is important we don’t limit the ability to create a basic-need solution or give control of that solution to just one or two companies.  By preventing clothing from being protected under copyright, we hopefully allow companies to produce both high-end and low-end clothing so that everyone can have access to it.

Various attempts to protect clothing with copyright have nevertheless been pursued in Congress.  As I was listening to the interview, I started imagining what would happen to reality shows if such fashion-protective copyright legislation passed.  Jersey Shore would turn simply into one giant blur-effect.  We’d see the faces of the cast, hear the conversations, but everything else would pretty much be blurred or blacked out.  An interesting consequence, and a helpful reminder to think about all the possible unintended side effects from a decision – legal or otherwise.

There are already some misconceptions floating around the net about who can sue, what they can sue for, and what the defenses are.  A few issues:

Is copyright even involved?

Copyright protects original works of authorship fixed in a tangible medium of expression.  Pieces of art are usually written on paper, preserved with sound recordings, or set down in film.  A tattoo applied to the skin is sufficiently permanently recorded so that it can be perceived, and as long as the tattoo contains a minimal level of creativity, it would qualify for copyright protection.  Certainly Tyson’s tribal tattoo has creativity to it.  Copyright exists.

So who owns the copyright?

Copyright ownership vests first to the author, but can be transferred by assignment.  Whitmill created the work and thus initially owned the copyright (unless it was a work made for hire), and he apparently had Tyson sign a release recognizing that ownership interest.  (Let’s question the intelligence of essentially giving (or not reserving) control of a piece of your body over to someone else.  I would love to see the release and whether it includes any exceptions for Tyson’s own display of his face tattoo.  But more on Tyson’s specific tattoo later).  Whitmill registered the copyright less than a month ago, no doubt as a precursor to this litigation.  Without the copyright registration, he wouldn’t be allowed to bring a federal lawsuit.

What rights can be asserted?

Copyright gives the owner a number of exclusive rights, but generally it allows the owner to prevent anyone from reproducing, displaying, distributing, or preparing derivative works of the original work.  It is possible here that Whitmill could have contracted away some of his rights in his agreement with Tyson.  But presumably, that deal would be between himself and Tyson and thus wouldn’t exempt conduct by third parties.  Ed Helms’ character’s tattoo implicates at least the derivative works right and more likely the reproduction right.  I can’t really see anything more than a trivial variation between the two tattoos; the tattoos bear much, much more than a substantial similarity with each other.  It would be incredibly difficult to argue that the second tattoo has any degree of originality.

Is there infringement?

The copying is so close here, it would be almost impossible to pass a straight-face test in an argument of no infringement.  Clearly, Warner Bros. knew of the Tyson tattoo (he did appear in the first film, after all), and the second tattoo is essentially a replica.  The similarities between the two tattoos are so exact that your mind instantly thinks of Mike Tyson when you see Ed Helms’ tattoo.  If the case gets to court, which it almost certainly won’t, I have no doubt that this point would simply be stipulated.

Are there any defenses to infringement?

The fair use defense is where the argument really arises.  Fair use is a defense to copyright infringement that evaluates a number of factors, namely, the purpose and character of the use, the nature of the copyrighted work, the amount of substantiality of the work used, and a few others.  Most of these factors fall on the side of Whitmill.  The work is highly creative and it has been co-opted completely by Warner Bros.  The one argument Warner may have is that the use of the tattoo is a parody.  A parody must call recognition to the original work and must make some comment on it as well.  The parody doesn’t have to be successful – even if the parody isn’t very good at making its point, it may still be considered fair.  Obviously, there can be a lot of discussion about the comments that the movie is making about the tattoo or Tyson himself.  Until the movie comes out, though, we won’t know for sure what the commentary is, but there may be a strong argument here.

Nevertheless, this case is likely to settle out.  Whitmill has a pretty decent argument, and Warner Bros probably doesn’t want the movie to come out late.  An injunction request has been filed to halt the release of the movie, but a delay of the movie isn’t likely worth the cost of a quick settlement to Warner Bros.

The Takeaway from the Hangover: Applaud the tattoo artist here for being so forward-thinking in retaining his rights in the tattoo.  I’m not sure if releases like this are common at tattoo parlors, but I think they might be after this.

Oh, and why wasn’t there a suit for the first Hangover?  I have a few suspicions.  Copyright law includes a policy known as the first-sale doctrine.  Typically, a copyright owner is given the first chance to distribute his or her work publicly.  Once that first sale is made, however, the owner of the actual work (or the thing in which the work is inherent) can distribute it as he pleases.  It could certainly be arguable that once Tyson paid for the tattoo, he owned that particularly copy and could distribute it as he please.  Thus, it is possible that Tyson didn’t need any provisions in the tattoo agreement allowing him to use or display his face around town, and he could give permission to Warner Bros to reproduce the tattoo on his face in the first movie.

The professor has a great point, and we can find many examples of multiple forms of protection on the same item.   The article explores those original policies, details how change has come about, and considers what problems have developed because of the overlapping IP protection.   Over at IPWatchdog, I played devil’s advocate and questioned whether this necessarily was a bad thing and, if so, whose role it was to correct.  Is it fair to say that intellectual property laws are fundamentally capitalist tools, geared toward innovation, entrepreneurialism, and creativity, and as such, the law should be played out to the fullest extent possible so that those ends are achieved?  Or do we risk serious damage to the economy and the system of innovation by failing to respect the original principles that today are not quite as fully embodied in the law?

One of the claims made by Blizzard, the WoW creator, against Blizzard, creator of a Glide bot that ran on WoW, could have laid the groundwork for serious damage whenever a software user went beyond the scope of the license.  There is an argument that the license defines the scope of use, and that any use outside that scope is unauthorized.  A copy of software must necessarily be made in the computer for the software to run, so when the use of that software is unauthorized, it is arguably infringing.  And so went the claim: by operating the Glide bot in defiance of the WoW terms and conditions, the gamer was running an unauthorized copy of WoW and thus infringing the WoW copyright.

This line of logic is a powerful tool that could have been used to attack anyone using software in an unauthorized way with not just a contract claim, but a copyright infringement claim.  Double-dipping in this way creates some serious repercussions.  However, the court parried the argument and denied the copyright claim.

The Supreme Court comes into play because of the Ninth Circuit’s ruling on the DMCA provision.  The DMCA has many facets; one of them making it illegal to circumvent technological protections that protect copyrighted material.  The Fifth Circuit’s ruling in MGE UPS Systems Inc. v. GE Consumer and Industrial Inc., in July on this provision stated that liability would arise only if there were circumvention and copying.  In other words, merely breaking through technological protection and viewing or accessing the copyrighted work would not create problems – copying also would have to take place.  The Ninth Circuit has adopted a different track, however, and in this case it holds that both elements need not be present.  This adds another case to the circuit split among several appellate courts, meaning the issue could be ready for final decision by the Supreme Court.

Copyright protection exists from the moment a work is created.  As these words flow from my fingers, I’m contemporaneously obtaining copyright protection in them.  Just about everything with a minimal level of creativity has copyright protection.  Federal registration of a copyright is another thing.  Copyrights that are registered are relatively easy to search and discover.  This makes sense – the government has a list of them catalogued away.  It would be impossible, however, to find all relevant, non-registered, copyrighted images.  Most works are never registered for copyright protection.  Think school essays, restaurant menu designs, website layouts, childhood drawings, and on and on and on….  All of these things have copyright protection, but they will be almost impossible to find because they are usually never registered.  If I draw something and file it away, it has copyright protection, but no one will ever really know about it.

The impossibility of finding them isn’t necessarily a problematic thing.  Because copyright infringement generally requires proof of both access and copying, the impossibility of searching and finding a work could correlate with it not being initially accessed, and therefore, not copied.  This, too, makes sense: the fact that one kid’s picture of the family, the house, the dog, and the sun looks like another kid’s doesn’t mean they are copies – it simply means they look alike.  If the first kid never had access to the other kid’s work, he couldn’t have copied it.

Doing a search opens a can of worms, and that can has the label “access.”  If you were to do a search of registered or non-registered copyrighted images and did find something that is similar to your work, you have now accessed that similar work.  If you then continue to use your work with your new-found knowledge of the similar work, there is an argument that you have now infringed the similar work’s copyright.  So a search doesn’t really help “avoid” infringement: if you copied your image from a work, then you know about the underlying work, and the search is unnecessary.  If you didn’t copy your image from a work, then you will only risk acquiring knowledge of a similar work by performing a search and exposing yourself to an infringement claim.

Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.

This warning will apprise the viewer that the work is protected by copyright (it is protected by copyright even without this warning, of course) and that the owner takes copyright law seriously.  The warning doesn’t really create any rights for the owner; after all, the warning speaks to criminal consequences, which the owner, as a private entity, can’t control.  But, it does show the viewer that the owner doesn’t take copyright infringement likely, and that, in addition to facing civil liability, the copier could be risking criminal punishment.

The logo above can only be used by certain entities.  While the FBI allows anyone to use the warning text, the logo is only available to members of the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and several other industry organizations, if the members themselves sign a licensing agreement specifying the terms of that use.

Special Disclaimer: this use of the logo above is for illustrative purposes, and the firm is not a party to any agreement with the FBI allowing its use.  It is used here for educational purposes.

The world of patents is a complex playing field of evolving rights.  New patents are being introduced all the time, and expired patents are constantly falling out.  In this complex field, the right to practice an invention and the right to keep others from practicing it are forever changing.  Inventors must understand the difference between the right to use and the right to exclude.  In what often seems a paradoxical situation to inventors, having a patent does not mean you can make and use your invention.  It only means you can prevent others from making and using your invention.  Inventors may question the value of a patent if this is true, but that exclusive right is the value.  It is the value in controlling the marketplace by keeping others out.  But when the Patent Office grants you a patent, it is merely saying that you now have an right to exclude others from practicing your invention; it does not make a judgment as to whether you can practice it yourself.

You may wonder in what situations you would have a patent on your invention but not be able to use the invention.  Just as you, as a patent holder, can prevent others from practicing your invention, other patent holders can prevent you from practicing theirs.  And if your invention borders too closely to theirs, they can prevent you from practicing yours.  Further, practicing your invention may be impossible if it involves something that breaks the law.  This is it, essentially.  Because what you have created may be prohibited by law or by someone else’s patent rights, you can be prevented from using your invention.

Here’s a very rough analogy.  Are keys to a car equivalent to a right to use the car?  Not really.  Just because a person is in possession of keys to a car doesn’t mean they have the right to use that car.  Their license may have been revoked.  The car may be impounded.  It might be inside someone’s garage.  The person may be under age 16.  Some other third party has decided whether they have the right to use the car.  But, as long as they hold the keys, they can keep other people from driving that car. The keys confer, roughly, not the right to use the car (because that ability is determined by outside forces), but the right to keep others from using the car.

I previously wrote about the effects of merely placing the copyright symbol on your work.  Registering your work with the federal government gives additional protection.

By registering your copyright with the federal government, you add several features of protection to your work. First, you place the public on notice of your copyright. Second, if you register the copyright within 5 years of publishing the work, your copyright registration becomes evidence in court that your copyright is valid. Third, you can bring an action in federal court for infringement of your copyright. Fourth, and perhaps most attractive, you can be awarded statutory damages and attorney’s fees if you are successful in a lawsuit.

There are two main types of intellectual property rights that can reside in a logo: copyright and trademark. Copyright protects an original work of authorship fixed in tangible means of expression; typically, a creative or artistic piece that is drawn, painted, saved, or otherwise recorded. Trademark rights protect the use of a symbol or identifier in connection with the sale or advertisement of a product or service.

Copyright usually vests in the person that created the work. However, when someone is hired by another to develop a work, the copyright may be owned by the employer or hiring party. Generally, in standard salary-based employment relationships, the employer will own copyright in works produced by the employee. But a graphic artist hired to develop a logo isn’t a standard employee – he or she is an independent contractor. The fact that the work is being produced expressly for the company’s use as an emblem for its identity likely weighs toward finding that the company is the owner of the copyright in the work, but it doesn’t provide a guarantee. A contract should be in place between the company and the graphic artist defining the relationship, and it should also cover the copyright in the work(s) produced.

Why is copyright a concern? Technically, if it were determined that the graphic artist retained ownership in the copyright, then the company would be infringing that copyright each time it used the work as its logo (absent a licensing agreement). Ouch. Or, if the company wanted to make a similar logo with a few slight differences, that newer logo could be considered an infringing derivative work of the original. Losing control of the copyright effectively equates to a loss of the ability to use and develop the logo.

Trademark rights are more clear-cut. Trademark rights arise only where there is use. While the graphic artist may have developed the logo, she did not use it in a trademark sense; in other words, she did not advertise a product with the mark affixed or sell an item that carried the logo. She has merely created the mark, and creation alone does not spawn trademark rights. Therefore, trademark concerns shouldn’t be too problematic when using a graphic artist to develop a logo.

Nevertheless, make sure that the contract with the graphic artist deals with trademark rights. There isn’t a reason for the graphic artist to hold onto any copyright or trademark rights that might arise in the work she creates. Her business isn’t holding copyright and trademark lawsuits over people’s heads; it is helping people develop creative and effective logos for their businesses.

Intellectual property theory often recognizes public policy, and it seemed possible that Congress could have said that fonts should not be subject to copyright protection so that the use of language would be proprietary. In other words, at first I though Congress might have decided that giving a select few font owners the power to exclude others from using fonts would limit the very ability of people to communicate and thus might have removed fonts from copyright protection.

A little research later…. Congress and the courts have said something along those lines. One case notes (calligraphers begin crying here) that “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.” Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). The regulation 37 CFR 202.1(e) says “typeface as typeface” is not eligible for copyright protection or for applications for copyright registration. What does “typeface as typeface” mean? Essentially, fonts as you think of them are not protected by copyright. They are specifically excluded by statute. However, software that produce fonts – generally PostScript or TrueType – are protected because they are computer programs, which typically are protected by copyright So you get a slight dichotomy: copying the computer program to produce the font would be copyright infringement, but “copying” a single character of the same font would not be copyright (generally).

That doesn’t mean that you can go out and copy any stylized lettering you see in print. The design of the letters may nevertheless be protected by copyright – it truly depends on the nature of the design, the amount of creativity involved, the amount of functionality, and other factors. And to address the letter-artists’ worries: while the individual design of a letter may not fall under copyright protection, your greater work probably is protected as an artistic piece, considering the arrangement of lettering, the use of space, background, organization, and all the other creative aspects that go into your work. Concerns beyond copyright: copying lettering could also raise trademark issues depending on the content you are emulating.

I usually don’t double-down with this disclaimer, but here I will. This area of copyright is complex and highly fact dependent. This post is a really high-level view of fonts, typefaces, and copyright. Please consult with an attorney before proceeding with a decision involving this area of the law.