Mea Rhee on mon 27 jul 09
May,
Yes, what you're describing is an infringement of a trademark and copyrig=
=3D
hts, regardless=3D20
of how many other design elements you add, or your purpose for the artwor=
=3D
k.=3D20
Is it a serious violation? Not at all. Will you get in trouble? I would b=
=3D
e shocked if you did,=3D20
but it's not impossible.
You won't get sued just for making the artwork, but you want to sell it t=
=3D
oo. What if your=3D20
Cup-o-Noodles parody is a smashing success and earns you a lot of money? =
=3D
Nissin Foods=3D20
could sue you, and rightfully so, for the money. "Free speech" and "satir=
=3D
e" arguments will=3D20
not help you if you earned money off of their trademark.
The legal and responsible thing to do is ask for permission. I quickly go=
=3D
ogled Nissin Foods=3D20
and found a "contact us" web form. Describe exactly what you're doing, in=
=3D
cluding that=3D20
your goal is to sell the work, how many you plan to produce, and ask if t=
=3D
hey have any=3D20
objections. If you never hear from them then go ahead with your project. =
=3D
If you receive=3D20
permission, even better! If they say please don't, then stop.=3D20
Just as a broad comment to everyone who works as a visual artist of any s=
=3D
tripe ... if you=3D20
violate other people's copyrights, even if it's harmless, even if it's a =
=3D
big company, even=3D20
when you're positive you won't get in trouble, it is bad for your karma a=
=3D
s an artist. Be=3D20
respectful!
Mea
James Freeman on mon 27 jul 09
On Mon, Jul 27, 2009 at 3:12 PM, Steve Slatin wrote=
=3D
:
...snip...
>
> As far as copyright, the key is "work of
> authorship." =3DA0A cup shape is not written,
> unlike a play, a novel, or a computer
> program. =3DA0Hence copyright would not apply.
Steve...
I think you might be employing a narrow, colloquial definition of
"authorship". Copyright is not restricted in any way to writings. A
physical object certainly can be protected by copyright. Here are a
few references:
http://www.umuc.edu/library/copy.shtml
Scroll down to "What can be copyrighted?" It states "However,
anything that is tangible can be copyrighted"
http://www.k-state.edu/academicpersonnel/intprop/webtutor/sld006.htm
Slides 5 and 6.
There are many, many others. Perhaps the most authoritative is the
"Copyright Basics" circular published by the U.S. Copyright Office:
http://www.copyright.gov/circs/circ01.pdf
It states in part:
Copyrightable works
include the following categories:
1 literary works
2 musical works, including any accompanying words
3 dramatic works, including any accompanying music
4 pantomimes and choreographic works
5 pictorial, graphic, and sculptural works
6 motion pictures and other audiovisual works
7 sound recordings
8 architectural works
THESE CATEGORIES SHOULD BE VIEWED BROADLY. (Emphasis mine)
Case law has further held that the work need not possess any artistic
merit whatsoever in order for copyright to apply. In fact, this very
email is automatically subject to copyright, and I am the copyright
holder (unless listserv has some sort of relinquishment clause in
their terms of use, as Hotmail, for instance, does). I have not
searched for cases relating to copyright protection of industrial
design (as with the noodle cup), but I don't think they would be hard
to locate.
>
> As far as the trademark question goes,
> lots of things have been trademarked over
> the years that end up elsewhere -- the general
> case law on this is that if the second use
> does not relate to the original product,
> there's no infringement. =3DA0Since May's
> satire-ware would not be mistaken for
> an actual cup of noodles, she'd almost
> certainly prevail in a legal challenge.
No, but aren't we talking about the recognizable cup, not the noodles?
>
> Further, her "piggybacking" the format
> of the cup is instantly identifiable as
> satire, which has a fairly high degree
> of free-speech protection in US law.
Here is a link to an entire exhibition surrounding "artworks" that did
precisely what May proposes:
http://www.illegal-art.org/index.html
Here is a link to a partial catalog for the show. Many of the works
landed the artist in court:
http://www.illegal-art.org/print/index.html
>
> It's not like making a motorcycle, and
> using a variation of the Harley-Davidson
> logo to create the idea that it an H-D
> when it isn't. =3DA0It's like making a cake
> in the shape of a motorcycle for the
> birthday of an H-D rider. =3DA0(This
> class of use has been accepted as
> protected, IIRC.)
You make your kid a single Harley cake, and no one will know and no
one will care. Now start making lots of Harley cakes and selling them
for profit and see how fast you get a knock on your door!
It seems to me that May's proposed use is almost certainly a violation
(Any intellectual property rights attorneys on the list? I merely
play one on TV.). It seems almost nearly as certain that no one would
ever find out, but does that make it legal?
May, make your noodle cups, and I'll post your bail in exchange for
one of your wonderful platters!
All the best.
...James
James Freeman
"All I say is by way of discourse, and nothing by way of advice. I
should not speak so boldly if it were my due to be believed."
-Michel de Montaigne
http://www.jamesfreemanstudio.com
http://www.flickr.com/photos/jamesfreemanstudio/
http://www.jamesfreemanstudio.com/clayart/
Des & Jan Howard on tue 28 jul 09
May
Many years ago, a potting couple who supplied our shop
made a couple of pots, one vase in the form of a
well-known detergent powder box (colour,size,logo) &
t'other a jug with handle in the form of the best
selling milk carton with handle (again same colour,
size, logo).
The purchaser of these two items was THE ad agency who
handled the accounts for both national companies.
The pots were bought for the agency head office
& the buyers were quite pleased with their find.
Des
May Luk wrote:
> Does anybody know copyright issues about existing shapes?
--
Des & Jan Howard
Lue Pottery
Lue NSW
Australia
2850
02 6373 6419
www.luepottery.hwy.com.au
-32.656072 149.840624
Snail Scott on tue 28 jul 09
On Jul 27, 2009, at 5:18 PM, Mea Rhee wrote:
> "Free speech" and "satire" arguments will
> not help you if you earned money off of their trademark...
Actually, free speech and satire will get you
quite a lot of legal breathing room.
Disney is famous for suing even tiny home-
based day-care centers for unauthorized
use of their characters on decor or signage,
but a guy I know (fairly high-profile ceramist
and painter) has been doing nothing but
Mickey parodies for years, with impunity.
The satirical component makes him legally
bulletproof. And it's OK to make money
doing it. Really. But it does have to have
your voice in it - a real statement or satire
or commentary - to be protected. It must
offer more than just the use of the legally
copyrighted/trademarked image; you've
got to be saying something to have free
speech protection. The value of the work
has to derive mainly from your contribution
to it, not theirs.
Every time money is short, Jack tells me to
just make 'Precious Moments' knockoffs
instead of my unsaleable surreal objects.
If I actually did that, I'd be totally liable for
infringement, but if I did that 'Precious
Moments' figurine with an anvil embedded
in its skull (my preference), that would be
completely OK. I could even use a real
'Precious Moments' figurine, add just
the anvil, resell it with my name on it,
and it would still be fine. It doesn't have
to be profound or even witty speech to
be protected; it just has to show an opinion.
Unfortunately, 'this is cool' is an opinion too
close to the original product intent, which
is why critical satire is safest. Critical
content is the reason that the US protects
free speech in the first place.
I'm still not a lawyer, but perhaps a call
to 'Volunteer Lawyers and Accountants
for the Arts' (VLAA.org) in your area would
resolve this in a more authoritative way.
-Snail
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