Get the Rights: Permissions, Copyrights and Trademarks—Or Not

Feb 27

What is in the public domain, and when do copyrights go wrong?

A few years back we created a website for Reform Pittsburgh Now. We had a vision of using images created by the WPA art project that depicted Pittsburgh during the growth of its industrial sector. We wrongly assumed that the rights would not be difficult to obtain.

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Turns out that getting the rights was easier said than done.

Because the US Postal Service now claims to own the rights to all images on the walls of post offices, we could not get the rights to use publicly-financed art that appears in public spaces. Happily, we found a wonderful public work on a PA courthouse wall and eventually got permission to use the images from the curator of exhibits for the State of Pennsylvania.

When is public art not public?

Who owns the rights to a plastic yellow duck toy, or the word duck, or the word quack? The Pittsburgh Cultural Trust attempted to squash sales of t-shirts featuring the duck made by other vendors, claiming that it owned the rights to that image. Joe Wos, who curates the ToonSeum, thought up the idea of Quack N’At and made t-shirts with a picture of the duck on the Pittsburgh skyline. Unfortunately, the Pittsburgh Cultural Trust believes it owns the rights to everything duck-related in and around Pittsburgh because it brought the rubber duck installation to the region.

I fully support the rights of artists and companies to protect their work, but I also feel that most creative efforts are not wholly original and should not inhibit other creative expression in an effort to protect their own interests. We asked photographer Richard Kelly for his take on this issue. He told us, “Of course most art builds on the work of something else, which is why copyright protects only the unique and creative expression of an idea, not the idea itself or any of the facts. I think many people who create copyrighted works would be surprised to learn what is not copyrightable and many people who observe creativity are surprised by what is.”

The world has become trademark-crazed. Pittsburgh’s own Isley’s Klondike Bar used blue on metallic silver to market the iconic ice cream treat. After it sold the brand to Unilever, Kraft Food’s knock-off polar bear bar used blue as its official color only to be sued by Klondike. Thankfully the courts ruled that Unilever could not own the color blue.

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Take a hint from Construction Junction’s parody of Nike with its “Just Reuse It” campaign featuring the Nike swoosh. Or, consider the Dumb Starbucks installation in Los Angeles, which opened a store identical to Starbucks except for one small detail: the word dumb is written before every word on the menu and signage. Dumb Starbucks protected itself under Parody Law. One patron tweeted, “Go buy some @dumbstarbucks before dumb lawyers get to it.”

Maybe Dumb Starbucks is a lesson for us all.

3 people have commented…

  • John Schulman-aka CalibanBooks

    Well, when Caliban Books (tm, NOT) opened in ’91, we first thought of naming it Carnegie Square Books. We were near the Carnegie Museum and Library and wanted to acknowledge not only that proximity but to link ourselves to the name of one of the great men in book promotion. We put a “coming soon” sign in the window and paid a neon man to do us a sign. Then we were contacted by a lawyer for the Carnegie Museum and Library who said that they had the trademark on any name with Carnegie in it, etc. etc. and would go to court over us naming our shop… We checked on this with a department in Harrisburg called the Bureau of Fictitious Names, where people go to register the names of their businesses. A guy answered the phone: “Fictitious Names, how may I help you?” and I told him about our problem. The fictitious guy gave good advice: he said, they’ll eat you up with legal costs even though you’re right, so I’d back off and go another direction if I were you. We did. And we get along with the folks at the Carnegie as a result. Trademarking names and colors of things is one thing. That’s just about money asserting itself. But trademarking intellectual content is a different philosophical issue. In a world that is all about sharing, where information seems free, where the original authors are hidden, where images, music, and our most intimate moments are shared publicly, it seems like the idea of what is our own is rapidly diminishing. But the only way to protect what is our own original content is to engage the legal system in defending our works from getting used without our permission. Since that kind of engagement is costly and time consuming, there’s a lot of people getting ripped off our there who don’t have the resources to protect what was theirs. And that’s a shame.

  • joemanich

    Nice piece Paul. In my opinion copyrights went wrong when congress allowed itself to be influence by huge companies (Disney) and extended what was once a sound and pragmatic copyright law into something that is ridiculous as your story clearly points out.

    The original copyright law intended to foster innovation by offering protection to creatives for a period of time namely the author’s life span. But when Disney requested that Mickey Mouse’s copyright be extended, it has become where Mickey will probably NEVER be out of copyright in the lifetime of my grandchildren.

    As a amateur photographer, I do not want to be taken advantage from and want to protect my work, but at some point enough is enough.

    As a software maker, I do not want to get ripped off either.

    By allowing some of these works to go into public domain, it facilities education and helps the next generation of creatives (building on top of the shoulders of our ancestors). This is how we achieve PROGRESS.

  • Copyrights are an extremely fine line to toe. On the one hand, by protecting creators, innovators, artists, and their ideas, we create a culture that fosters new ideas and makes people want to to make realities out of those ideas. On the other hand, when copyright law goes too far, the same things that copyrights are meant to foster (creativity, new ideas, etc.) begin to be stifled by too much red tape, legal costs like John mentioned, and never-ending copyrights like Joe noted. The harder question is where the reasonable ends and the absurd begins.