Thursday, April 11, 2013

Know Your Rights

We've all seen this by now, I trust:

“Firefly” Hat Triggers Corporate Crackdown

Because Firefly fans need more reasons to be mad at 20th Century Fox. After years of satisfied customers, online stores selling hand-knitted replicas of the show's iconic “Jayne hat” are being forced to shut down… and fans are upset.
If you haven't, get thee to BuzzFeed posthaste!

In the "Won't Get Fooled Again" spirit of April, a gentle imploration:


In this particular case, the exact nature of the takedown isn't noted. It is assumed by many that the hat itself is somehow copyrighted or trademarked. Au contraire ... you cannot copyright an article of clothing. You can copyright logos and that sort of thing, which is why you see Louis Vuitton logos plastered all over Louis Vuitton handbags, etc.  (There's some interesting information about this very topic in a Morning Edition story from last September: "Why Knockoffs are Good for the Fashion Industry.")

It may be a trademark issue.  For instance if the Etsy sellers were listing it as "Firefly hat as worn by Jayne Cobb" or the like. In that case, the makers of these hats need to take a page out of Whimsic Alley's book:

... see what they did there?  (If you have never been to Whimsic Alley, you really should attend one of their high teas.  Absolutely delightful, if you're a fan of Harry Potter.) It doesn't take a wizard of the House of Lion to figure out that sort of work-around.

Even still, I understand that under certain circumstances you can use trademarked terms in the description of a good or service. This is how the manufacturers of Apple accessories can refer to something as an "iPad case" without running afoul of Apple. The case itself is called something like "EXXXTREME CONTACT CASE" and "iPad case" is merely description. This is called nominative fair use.

The takeaway from all this is, know your rights. That way, when you receive the C&D notice, you don't have to panic. You can calmly respond (through your attorney) and carry on.  If you don't know your rights, odds are you will infringe without realizing it, and/or panic and wind up shooting yourself in the foot.

Speaking of footbullets, I'm not sure how it is Etsy has avoided any umbrage in all this. ThinkGeek is taking its lumps, but very little has been said about Etsy taking down every store Ripple Junction complained about without bothering to see if any actual infringing was going on.  For shame, Etsy.  You should know your rights as well.

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