TM Marks the Spot: Some Notes on trade marks

 

Knowledge of copyright is slowly improving year by year as more iconic elements of pop culture fall out of its grasp. On the other hand, the equally common method of intellectual property limitation trademarks is still grossly misunderstood. I've noticed a tendency to treat trademarks like copyright with a different name, and that just isn't the case.

Disclaimer: This is not legal advice, I cannot assist you in a legal dispute or query this is just educational material and is to my knowledge correct at time of production. Direct all legal queries elsewhere.

A quick primer, Intellectual Property (IP) has three kinds of protections that limit what others can do with IP, they are as follows:

1. Patents: These concern protecting physical things such as designs and medicinal or edible recipes. In the United States of America, the United Kingdom and everywhere else I've checked, these last for a maximum of 20 years and have to be applied for via your nation's Patent Office. 
2. Copyright: This covers the idea or "Intellectual" part of IP. It generally exists at the point of creation, though registration is sometimes advisable to establish an easy way to prove creation and when in the event of a dispute. In most of the world, the terms last after the death of the creator, though there are exceptions depending on region. 
3. Trademarks: These don't protect IP so much as they protect the business entity (owner, company etc.) and their business activity on the market. They have to be applied for and approved, but can last as long as the product or service is active on the market.
   

Generally speaking, the strongest of these three IP types is Copyright, it gives the owner or possessor the greatest control over their product and has the weakest scope to challenge it. Patents are also firm but their short timespan relatively speaking mean that eventually copies and inspired products and designs will appear eventually, that's how generic versions of branded products can be sold legally, often right next to the product they're close to. 

Trademarks are the weakest of all three types, because they don't protect the IP, they protect a trademark holder from what's deemed to be unfair competition, usually via misleading and impersonation by competitors. Trademarks have to be attached to specific products, which is how you can have trademarks for public domain imagery and characters, it doesn't affect the character or the image it concerns financial activity. Now the bar on what does and does not count as unfair impersonation is arbitrary and has to be determined by court cases, but the bar for burden of proof is extremely high.

As an example, the image at the top, on the left is the original branded and trademarked soft drink Irn Bru (its pronounced Iron Brew or Urn Broo), produced by Barr, it's extremely popular in the UK, especially its native Scotland, I enjoy it and its diet version, despite its strong colour its flavour is not remotely Orange based, I don't know how to describe its flavour and the company has run advertising campaigns on how difficult to pin down its taste is. On the right is a store brand cheaper knock off called Iron Brew (it'd be funny if it were pronounced Irn Bru, but, sadly it's just called Iron Brew) I bought from either Aldi or Lidl, I forget which exactly. In addition to looking like Irn Bru it does taste like it as well. 

Now, given all the misinformation about trademarks out there, you might be wondering how on earth the stores are getting away with this, did Barr somehow let Irn Bru's trademark lapse? Well no, as an old company it has withdrawn some trademarks on designs and products over the years, but it still maintains several active trademarks.

So, then, what's the trick? Well, it isn't a trademark violation. It's clear to everyone that Aldi/Lidl are pushing their drink as an Irn Bru type soft drink, but the name is different and trust me Irn Bru is iconic here, it's like the distinction between Coke meaning Coca-Cola, and Cola meaning any black fizzy drink. And it does prominently display its brewery mark Vive which isn't Barr the owners of Irn Bru. The trademarks that are still valid include the name and its spelling and specific designs, Iron Brew while close to both is different. If they had also called their version Irn Bru or copied that design exactly or claimed to be an official Barr product, that would be a trademark violation, since there would be no way for an honest consumer to tell.

I'm not saying Barr doesn't have grounds to get a case to court to be looked at, I don't know and can't know what a corporation's legal department thinks about its chances. That it hasn't suggests (key word) that they don't fancy their chances even if they wanted to use the court to act against a competitor.

I could've also chosen The Asylum studio and its "Mockbuster" business model, where it churns out cheap movies that bare superficial resemblances to big Hollywood releases around the time of those releases. I think the most well known example is Transmorphers released in 2007 shortly after the first of the Michael Bey Transformers movies came out. 

If you're curious, this poster is better than anything in the movie

Again, it is obvious what the marketing strategy is here, but it manages to be a viable business model for them and the worst they've suffered is reputational damage as purveyors of cheap crap.

So, trademarks not only do not apply to content outside their narrow scope of business, they also don't give you the power to monopolise usage of IP within its narrow scope of business.

So, then, can we conclude that trademarks largely have no teeth? Well, trademarks have to be actively defended to be maintained, so it depends on what is the potential issue and who holds the trademarks. Last November I was visiting Dublin and toured the famous Guinness brewery, among the many interesting displays there was an information tablet dedicated to the famous brewery logo the right facing Harp. The Harp as an instrument and a symbol are closely tied to Ireland, so it's not a surprise that the image is used often for Irish products and institutions. However, one fact about the Harps I had not noticed, but the tablet explained was that all Irish government usages of the Harp are reversed, that they are all left facing. The reason? Well, Guinness trademarked their right facing Harp 50 years before the Irish state was established, and there was concern that using a right facing Harp would provoke the Guinness brewery into a trademark dispute, so to nip that in the bud the Irish government reversed the Harp. Whether Guinness would feel it had to take action and whether that action would've succeeded we'll never know.

Another interesting example of trademarking potentially causing an issue is the case of public domain Mickey Mouse comics.

You can watch the full discussion online here.

I'll summarise the key points.

• Despite Disney's firm control of IP, several pieces had fallen into the public domain. Including some of the early comic strips.
• Eternity Comics (EC) decided to collect these strips and publish them.
• EC predicted Disney would try to strong-arm them into stopping, and anticipated trademark dispute challenges.
• EC decided to pre-empt Disney by releasing the most trademark compliant comic collection imaginable, the comics were called The Uncensored Mouse, the covers were black, no Disney logos or marks past or present were used, only the artists of the strips were acknowledged and credited.
• Disney still went after them multiple times with their legal department to get them to stop after two issues were produced. Unfortunately for EC, while this was going on it was discovered that one or two of the strips in The Uncensored Mouse had been reprinted in another collection that was still copyrighted, and it looked like the public domain status of the collection was in dispute so EC stop printing them.
  

For clarification, here's the un trade markable cover for The Uncensored Mouse.

In this case it did not go to legal action, but it was heading that way if EC didn't stop. It's highly likely that a trademark suit would fail given the absurd lengths EC went to pre-empt such action, but they were a small publisher and Disney is, well, Disney. Just tying something up in court to exhaust the other side's time and money is a viable tactic that big corporations can and do resort to.

So to summarise.

• Trademarks are weaker than copyright if your goal is to prevent others from using something you've trademarked.
• Trademarks are a form of commercial protection of the business, not the trademarked thing itself.

 

Yippie Mickey

 

A satirical image produced by the Yippies! Youth International Party, a group on the radical fringes of the US New Left in the 60s-70s. The Yippies most famous member was Abbie Hoffman the author of Steal This Book! The Yippies were an eclectic bunch influenced by Anarchism and other anti-establishment ideas.

This gun toting Mickey Mouse is an example of the messaging and propaganda they circulated, though the Yippies were more well known for their street actions and stunts, including running a porcine called Pigasus for President. The image was used to promote calls for action and disruption of Disneyland in 1970, more details on that event can be found at libcom.org. 

Also, you may find this 1968 film produced by the Yippies informative.

Notes on a Mickey Mouse Poster

 

The news that Mickey Mouse is now in the public domain was greeted with jubilation and much gnashing of teeth from a certain boardroom. During the celebrations, many shared some of the posters that Disney produced to advertise its first sound cartoon, including the one you see above. Looks like a cheery innocent little fellow doesn't he. If only we'd realised sooner. 

This poster has sparked a mini controversy, because it's not a 100% clear whether this poster was produced and released in 1928 or early 1929, and it is in colour and Mickey is wearing gloves. Why that matters? Well, it shouldn't actually matter at all, but many people who misunderstand property laws and trademarks have worked themselves up over it. The idea goes if this poster is from 1928 the same year of Steamboat Willie's release then it and its design of the Mouse is public domain and free to use, if not then we'll have to wait another year to January 2025.

The problem here is that the question is irrelevant, to qualify for copyright status in the United States of America before 1988, a work must be released with a valid copyright notice and be registered at the copyright office. Do you see a copyright notice? I honestly can't and this is the cleanest high resolution version I've found. So, while the year of release would be of historical interest, it's irrelevant to the subject of ownership.

 Under the 1909 Act, federal statutory copyright protection attached to original works only when those works were 1) published and 2) had a notice of copyright affixed. Thus, state copyright law governed protection for unpublished works, but published works, whether containing a notice of copyright or not, were governed exclusively by federal law. If no notice of copyright was affixed to a work and the work was "published" in a legal sense, the 1909 Act provided no copyright protection and the work became part of the public domain. [https://en.wikipedia.org/wiki/Copyright_Act_of_1909]

You might be wondering why Disney even in the early days when Disney was still just a man forgot to protect this piece of his IP. He probably didn't forget, he just didn't bother, lots of American advertising and promotional material was released without bothering to register for copyright. Remember, the point of copyright terms was to provide long-term ownership of material and its business potential, promotional materials by design have a short shelf life. The poster at the centre of this mini controversy was run at some point between 1928-29, and then never again. Disney and Iwerks made more Mickey Mouse cartoons and other shorts.

 Here's a playlist of other adverts that fell into the public domain for the same reason.

Public Domain 2024, or why is Steamboat Willie still being flagged when I upload it to YouTube?

 

Yes, after Millions of dollars in lobbying efforts, after two decades of delay, Steamboat Willie the first animated short starring Mickey Mouse is finally public domain. Many have rushed to upload the short to their video platform of choice, which is of course YouTube. And yet many are finding that their videos are being claimed by the Disney corporation anyway. What gives? Well, as someone who uploads public domain material to YouTube regularly, including Steamboat Willie, nothing has changed.

There are two types of copyright triggers on YouTube, manual, where someone actively makes a claim and the much more common automatic flagging system which scrubs through whatever you upload to YouTube as part of the upload process, usually after the SD version is ready but before HD if that is applicable. And after uploading, your video will be subject to periodic and random checks for the rest of time. If you've ever received an e-mail out of the blue informing you that a video you uploaded ten years ago has been blocked in Greece or cannot be monetised because of a claim by a company in Australia, that is usually why that has happened.

This is an automatic flagging. Neither automatic nor manual copyright claims, blocks and strikes do not have legal standing and are not in themselves evidence of anything. But this is especially true of automatic versions when a work's copyright expires. All they mean is that someone - and it's important to remember that this could be anyone - has made a copyright claim on some material and either consciously made it against your upload or the automatic system thinks your content is a match for what's in its database to check for. So, once material has been added to the system to check it stays in there, it's up to the submitter to make changes and there is no obligation for them to do so nor sanction if they fail to do so. 

Last year, Disney was blocking my upload of Oswald the Lucky Rabbit's Trolley Trouble's. I disputed it and to my surprise, instead of running out the clock or trying to intimidate me into dropping the issue, they promptly responded and dropped the claim. A while ago, YouTube informed me that my channel could qualify for partnership, as part of the sales pitch it was keen to stress that I could make use of its checking system, simply upload my video to it, and it would take care of all the rest for me. I think you can see several of the potential openings for abuse right there.

Why such a boon for shady dealers and outright committers of copyfraud? Well, it's not YouTube's fault, well not exclusively its fault. It's the fault of Intellectual Property legislation. In particular the Digital Millennium Copyright Act, the dreaded DMCA. Under the DMCA system, YouTube and all other websites operating under jurisdiction of the United States of America have to take allegations of copyright infringement at their word and act to remove it. This leaves it up to the user to challenge it if those complaints are unfounded. And sites aren't even obligated to provide you the means to challenge it. YouTube gets lots of criticism for its copyright policies, but I will give it the barest slither of credit, it does allow users to make a challenge in the case of abuse, from what I've seen other websites just act and then ban the user or send them a warning. YouTube's process is extremely flawed, especially if you don't have a lawyer on retainer, but it has a process.

If you're curious why websites behave this way, it's because that's a requirement of the `Safe Harbour` protections. So this is a compromise between big media companies and big tech companies. YouTube and all the big online media sharing sites are full of piracy, but they rarely face any legal consequences, because the liability is transferred to the anonymous individual users. This aspect was key to what made that lawsuit by the channel Business Casual so surprising, the alleged actions of YouTube as a company risk losing that Safe Harbour status and would put them at risk of direct litigation for copyright violations and other activities by the company and its administration. So, it will be interesting to see how that class action lawsuit they're building plays out.

But back to the Mouse, because of how 'Safe Harbour' works there is no attempt at evaluation or judgement, it is a simple as Step 1: Report and Step 2: Remove as an automatic function, this means that the copyright claims on YouTube videos don't matter beyond restricting and annoying some people. The system by design eliminates evaluation and judgement of merit until other parties take further action. My upload of Steamboat Willie is blocked in several nations, and according to YouTube the claim is made by Disney, but I won't have any proof that Disney is in fact behind the claim unless I proceed through the dispute process up to a point where YouTube enacts a "contact the claimant" option and gives me an e-mail address, that is how little effort YouTube takes in verifying the identities of the entities that claim their legally protected material is being harmed by its service. Oh, and for extra fun, even when you win a dispute, there is nothing in place to stop the same content being claimed, nor being claimed by the same people you fought off last time. Warner Bros, are pretty infamous for repeatedly trying to re-claim their former properties to take just one example. What determines the copyright status of works is legislation and case law. So, if you live in one of those countries that keeps blocking the Mouse, you need to look at your own nation's legal codes; does your nation have the "rule of shorter term" for foreign works? Is the work still in copyright in your territory, and if so in what fashion and to whom is the representative? A company arbitrarily actioning what is often an automatic response does not mean anything.

Addendum

On the 13th of March, Disney failed to escalate my challenge copyright dispute over the content of the video, during the dispute period Disney did however remove its region blocks and changed to what's called an "ad grab" copyright claim. That's the claim that doesn't affect the upload but does monetise it for the claimant. So, looks like we have clarity, Mickey Mouse the character is public domain world wide.

Countdown to Mickey Mouse entering the public domain

 

Mickey Mouse becomes Free

 

On the 1st of January 2024 after decades of intensive lobbying Mickey Mouse will enter the public domain. His first appearance the 1928 animated short Steamboat Willy will lose its copyright protection in its country of origin the United States of America and thus every other territory like the United Kingdom that has the rule of shorter term and country of origin. 

 

Still from Mickey Mouse and the Mad Doctor

 Of course several Disney products have already entered the public domain because registrations weren't renewed and for works contracted to the United States government during WWII. And this includes some works that feature the Disney Empire corporation's mascot and superstar Michael `Mickey` Mouse. If you come across a collection of comic strips called "Uncensored Mouse" that is a collection of Mickey Mouse comic strips that are in the public domain. The importance here is that when a character's first appearance enters the public domain it frees up that character for re-use in many creative ways, whereas previously we were limited to the handful of works that were in the public domain. 

Though its important to keep in mind that Disney will retain copyright on many later works documenting the Mouse and his adventures, we'll have trademarks to deal with, but this is still a big deal.

Disney and Copyright fights (Again)

Disney is no stranger to fights over IP and monopolization disputes. It was the most active of the corporations backing the US copyright reform in the 80s and 90s, including the infamous 20-year freeze on the public domain. Its intransigence and naked desire to maintain exclusive control over Mickey Mouse have made it the popular bogeyman in many a free information advocates creations. 

So, as we creep ever closer to Steamboat Willie entering the public domain (2024 if nothing changes) I was not surprised to see Disney headlining more articles about potential copyright reforms. Though, the exact nature of the reforms and the surrounding context did surprise me. Right wing Republican legislators in the state of Florida passed a sweeping law making it illegal to discuss sexuality in schools, dubbed the `Don't say Gay law` since it mainly targets depictions of homosexuality and has lead to a surge of right wing propaganda equating queer identities with child grooming. The bill and its implications are essentially an American version of the infamous Section 28 code passed into law in the United Kingdom in the 1980s and wasn't scrapped until 2003. It also mandates that teachers out their students to their parents, which is essentially a mechanism for abuse and harassment and will only cause more suffering for children. So, much for child protection.

Disney came under intense criticism since, as a key sector of Florida's economy for decades, its lobbying efforts helped put many of these legislators and the Governor Ron DeSantis. 

  “How many parents want their kindergarteners to have transgenderism or something injected into classroom discussion?”

- Ron DeSantis

Disney's lack of action caused great consternation amongst its fans and employees, many of whom staged walkouts in protest of both the bill and their employer's connections to it.

Things can change rather quickly in politics. Due to the pressure and criticism, the Disney corporation slowly started to change direction. Its CEO openly apologized for its previous silence and made some statements in support of repealing the law. 

On Friday, Mr Chapek told employees in a memo that he was wrong to have been silent on the 'Don't Say Gay' bill.

The admission came after he had claimed earlier in the week that he believed "corporate statements do very little to change outcomes or minds" and Disney's involvement would make it "a political football" - a statement that was denounced by animators on social media, who called it a "momentous misstep".

https://www.bbc.co.uk/news/world-us-canada-60714063 

Since March, I've tried to find evidence of any constructive action on the part of the Disney corporation, couldn't find much, a meeting that was organised to discuss the bill with employees, and some comments about possibly relocating staff who are affected by the law and a pause (Disney's word) on donation to political groups in Florida and some more press snippets about opposition. However, even that was apparently enough to shatter years of shoulder rubbing and palm greasing. The Republican's of Florida were not happy, and acted decisively. 

I was genuinely surprised to see how swift and damaging their retaliation against the Disney corporation was. Within weeks of Disney's stumbling turn to mild opposition, the Florida state government ended the corporation's exemptions and even dissolve its special district and governmental privileges. Yes you read that correctly, Disney has been such a powerhouse in the state of Florida it had managed to become a distinct municipal political entity. 

From late March through April, the Florida Republicans have passed bill after bill stripping Disney of privileges and perks it won through decades of heavy lobbying. But that isn't all. In May the Republican Senator for Montana, Josh Hawley introduced a bill to Congress called, The Copyright Clause Restoration Act (CCRA). The CCRA if it were passed would return the United States to its pre 1970s copyright system of registration and terms of renewal, a maximum of 56 years if the renewal is taken. It also has clauses that apply retroactively, which mean that works created in the United States that are 56 years old or over would fall into the public domain! Or so it's commonly reported. Naturally, when I saw the headlines and clickbait I was surprised and excited, but, alas we do not live in a world that's naturally that just.

There are massive caveats and red flags. First, Hawley is a right wing bigot and this initiative has nothing to do with creative freedom, it's merely an attempt to punish a number of big companies that the far right in America consider "woke" and subversive. 

 “Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists,” Hawley said in a statement. “It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.”

https://thehill.com/news/senate/3483021-hawley-introducing-measure-to-strip-disney-of-copyright-protections/

That Disney is not only included but at the top of many of these lists just show how divorced from reality this world view is. Furthermore, it has no chance of passing, second most of its "positive"clauses are kneecapped by the spirit of spitefulness that spurred it on. The retroactive clause example when read in full only applies to the Disney Corporation and maybe two or three others possibly. And sadly, it devalues by association the struggle for free knowledge and artistic expression.

I don't care for Disney, even if it had a completely different attitude on IP law it would still be an entity that has committed many ethical violations and super exploitation. Its union busted, supported the House of Un-American Activities witch hunts, put thousands of staff at risk by re-opening in the middle of the COVID pandemic to scratch just the surface. I have zero sympathy for them, instead I respect the employees who managed to force this company to take even the minor sluggish action it has done so far. I'm not worried about the retaliations on it as a corporate entity, I can't say I enjoy them though given the perpetrators and their reasoning, I think both groups are frankly abusive and harmful scum. 

 The three good things I hope to come from this are:

1. The rift between the Florida right wing and Disney becomes permanent, and the two are active enemies.
2. The fallout from this contributes to the defeat of this law and similar initiatives throughout the United States.
3. The publicity generated from this spat boosts genuine and consistent arguments for the public domain to be protected and expanded.

 I'm not overly optimistic, but this is where I stand.