Jejune IP – A Postscript

Photo by Sébastien GARNIER, some rights reserved.

One of the (many) frustrating elements of the recent freeman-on-the-land woo-fest  is their ability to pick and choose interpretations of the law to suit their claims.  While this may be the basis of most careers in law, it is far less satisfying to see it done with no consistency and little or no understanding of the underlying principles upon which the claims are based.

One of the more irksome effects of this pick-and-mix approach is the large number of contradictions it produces.  While it is not for me to pick apart every element of the faux-legal arguments advanced (although I must admit I am tempted) I will comment on the copyright issues.

Getoutofdebtfree’s recommend the so-called “declaration of copyright trademark” (which I’ve already debunked here).  This direction holds that by making a simple declaration in a local newspaper you can establish copyright in, and a trade mark of, your name.  Now while this is bollocks on many levels, it also explicitly contradicts another key freeman theory that holds that:

“All registered names are Crown copyright.” – ‘commonly known as dom’, Cif, 15 November 2011.

CKA Dom’s claim is based on a fingers-in-ears interpretation of the Crown copyright notice on a birth certificate.

Copyright in the layout of a blank birth certificate form in the UK belongs to the Crown, as is the case with the layout of most government documents that are to be completed by their users.  This is to ensure that no other body can copy or issue blank versions of these forms – sensible enough.

Ignoring the fact that it is not competent to claim copyright in a person’s name, we can also be sure that  it is a clear bastardisation of copyright law (and common sense) to suggest that by placing a copyright notice on a blank form the Crown can somehow claim to own the rights in the completed form which will necessarily include “work” produced by a third party.

If that is not enough, it is made clear in a number of places that the copyright notice on government forms extends only to the layout of the form.  You don’t need to spend hours in your local law library to work this out, you don’t even need to open Copinger and Skone James on Copyright, as the National Archives’ guide to Copying Birth, Death, Marriage and Civil Partnership Certificates is the first result on Google for “copyright in birth certificate” and helpfully advises in the first paragraph that:

“Copyright in the layout of certificates is owned by the Crown. The Crown does not assert any rights of ownership in the contents of the forms.”

Et voilà: another simple debunking of a freeman copyright theory.

So how is it that the freemen not only propose both of these contradictory interpretations, but also manage to go one step further and claim that despite (claim one) the Crown owning the copyright in your name, you can (claim two) claim this as your own and use it as a threat to stop people seeking repayment of your debts?

Haven’t they missed out some form of assignment?  A “Dear Liz, Please sign the enclosed copyright assignment document so I can seek to exclude myself from the jurisdiction of your treasonous courts.” letter perhaps?  Maybe this is only available to the premium subscribers of getoutofdebtfree.org.

Unfortunately I imagine this is another woo-based question to which we will not receive an answer.  Mainly because Queen Elizard-beth II is too busy hiding her bright green tail in her regal frocks to open her archives of hundreds of assignment documents made out in favour of Joe of the family Bloggs.

Shame.

Jejune IP Law

Photo by Odalaigh, some rights reserved

I wrote last month about examples of bad IP law – articles in the press that misrepresent and confuse the various distinctions of intellectual property law.  A couple of articles this week have moved my thoughts on, ever so slightly, to the prevelance of IP myths.

Legal Bizzle has posted today on two Comment is free pieces that appeared on The Guardian’s Occupy Cif pages today.  Bizzle’s ire was mainly (and rightly) directed at Jon Witterick’s piece on defaulting on your debts as a viable economic option.  The cigar chomping bear has already expertly (and with some panache) deconstructed a number of Witterick’s claims regarding debt collectors and fractional reserve banking so I will turn my cannon on one of the intellectual property issues raised instead.

One of Witterick’s recommended alternatives to actually paying off your debts is what he calls “Option 3: Copyright and Trademark Procedure” – he obviously hasn’t read my last post, else he’d know it’s “Trade Mark”, but that’s really the least of our worries.  It is based on a dubious assumption that if the debt collection agency cannot use your name without your permission, they cannot write to you and ask for the money back.  Or if they do, you can sue them for infringement and claim a massive amount of damages (£10m per use is suggested – quantum? What quantum?)

This procedure, it is claimed, “offers a greater level of protection” (than Witterick’s others) against those pesky debt collectors who have had the gall to ask you to pay back some money you’ve borrowed.  All that you need to do is “take control of your Uppercase/capitalised name or Strawman in Common Law and International Treaty” – whatever that means.

Apparently, this taking control just requires you to make a “Declaration of Copyright Trademark” whatever that may be.  Fortunately a quick Google search turns up a number of examples (alternatively you can sign up to Witterick’s website and get access to his own suggested wording for free (or £5 if you need it in a hurry)):

Declaration of Copyright Trademark.
I am known by the name: ©In-house: Hotshot, Creditor, Trustee, Secure Party, Author of the Copyright Name Trademark Claim autograph (IN-HOUSE HOTSHOT™) or any derivative thereof HEREBY ATTEST THAT, I am competent and capable of handling my private and commercial affairs in my full capacity as Agent for the name IN-HOUSE HOTSHOT™ and will enforce with prejudice any Copyright Name Trademark Claim infringements. ALL RIGHTS RESERVED

Now I’ve worked in trade mark and copyright law for a few years (well, long enough to know they’re not interchangeable terms anyway) and strangely this expertly drafted piece of prose has never come up in my studies or practice of IP law.

This may be because it is, in technical parlance, absolute bollocks.

While the freemen of wherever are correct to say that copyright and trade mark rights can arise without the need for registration, they cunningly gloss over the key requirements for each set of rights.

Photo by 917press, some rights reserved

Copyright protects “original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and the typographical arrangement of published editions” (Copyright, Designs and Patents Act 1988, section 1) – see any mention of names there?  No, me neither.

More importantly, copyright will only apply to a work of “independent creative effort” where “sufficient skill and labour has been expanded in its creation” – and I’m sure mummy and daddy straw man put a lot of thought into choosing baby straw man’s name, but I doubt it can be considered a high level of skill and labour (bad birthing puns excepted).  And if they did, well, surely the copyright is theirs as original authors, no?

In case you were starting to have doubts, the UK IPO handily provides a note on its copyright pages that (perhaps Meltwater notwithstanding) “names and titles do not have sufficient substantiality to be original”.

So there is no way that you (or your parents) can own copyright in your name.  Unless your name is coincidentally the first twenty pages of Harry Potter and the Deathly Hallows (or any other literary work), and even then I think JK Rowling and Bloomsbury’s lawyers might want a quick word.

Photo by caitlinburke, some rights reserved

So what about trade marks?  We read plenty of news stories about how Lady Gaga (UK TM registration number 2509635), Sarah Palin (US TM registration number 4005353) and David Beckham (CTM registration number 1796721) have registered their names, and if a name can be registered as a trade mark, surely it can exist as an unregistered trade mark too and then you could base a claim for infringement on these rights?

Well no.  Unregistered trade marks can only be protected through the common law wrong of passing off.  To succeed in a passing off claim you need to show the mark is yours and then establish the ‘holy trinity’ of reputation, damage and confusion:

  • The mark is yours – well that’s easy, we have our beautifully erudite Declaration of Copyright Trademark which has been published in the local newspaper and pasted onto our Facebook page.
  • You have built up a reputation in the mark – simple, I’ve been using mine for twenty-seven years now and it’s what everyone from my girlfriend to HMRC know me as.  What renown!
  • Damage – well of course – you’re using this name as a way to try and get me to pay back the money I owe – that’s pure economic loss right there I’d say.

So success right?  Well no.  What about confusion?  In order to prove confusion you need to show that there has been a false representation to the public which has led them to believe that the goods and services of the defendant (i.e. the debt collection agency) are those of the claimant (our Mr Strawman©™ etc).

This therefore requires a connection between the trade of our straw man and the business of debt collection.  This seems unlikely, unless while resisting the repayment of his own debts he operates a business that has been pursuing others for repayment of their own.  That’s beyond even Morissettian levels of irony, but doesn’t scan nearly as well, or rhyme with “dontchathink”.

So you cannot rely on unregistered trade mark rights in your name (though they may exist) to stop the wretched debt collector from calling unless you yourself are a debt collector, who has himself  run up a debt, and you can establish that the debt collector pursuing you has confused you (as a consumer), or potentially the original lender (as a purchaser of debt collection services), into believing that they are actually you and not an independent, completely unrelated debt collection agency, despite (presumably) their use of their own trading name which is in no way similar to your own name, and their use of your name as a way of addressing letters to you.

And what are the chances of that?  Better or worse than rain on your wedding day if you are a weather forecaster, or a traffic jam when you, as chief town planner, are already late for a meeting about alleviating traffic congestion?

Anyway, I’ve mentioned before that Taylor Wessing have published a list of what they term “Dangerous Intellectual Property Myths” and I think that today has shown us that we can add another one to the list, possibly just after the damaging reliance on ‘poor man’s copyright’:

“Because copyright and trade mark rights can exist without registration, all I need to do is say my name is eligible for copyright protection and is also a trade mark and it is so”

Sadly in this case it isn’t true, as Shakespeare almost said, that nothing is either eligible or ineligible for extensive IPR protection, but thinking makes it so.

Red All-Over: A Simple Distinction in Black and White

Photo by JamesRoseUK, some rights reserved

David Allen Green, new media legal darling and sedulous blogger at Jack of Kent (as well as approximately one hundred and one other places these days) wrote last week of another example of “Bad Law” – press articles which misrepresent or misunderstand the law to the extent that they serve only to undermine the public’s image of what the law is, and the excellent legal news reporting of the rest of the industry.

This theory of Bad Law reached the forefront of my mind again this week when a prime example cropped up in the Indy’s little sister, Itheir report on the latest twist in the Christian Louboutin v Yves Saint Laurent trade mark infringement case.

In brief, the case relates to a claim by Louboutin that YSL’s use of a red-painted sole on its posh (but not as posh as the claimant’s) high-heeled shoes is an infringement of his US registered trade mark (number 3,361,597 in case you’re wondering) for the use of red lacquer on the soles of women’s shoes.

Photo by Mr. Donut, some rights reserved.

I got itself into a right muddle over some simple intellectual property terminology and fell into the common trap of thinking all IP cases relate to copyright.  After initially making the right call and referring to Louboutin’s claim that a colour can be trade marked (ok they used the American trademarked, but we can let them off seeing as everyone seems to do that these days), the paper went on to say that Louboutin had claimed that YSL’s use of red infringed his copyright.  In fact, the excellent fashion law blogs at Styleite and Law of Fashion make no reference to copyright in their considerations of the case – presumably because it is not the same as trade mark infringement and therefore quite irrelevant to this case.

Bad Law reporting in relation to intellectual property has a long pedigree, and you only have to go back to mid-September to find another prime example in the national press.  In this article, the Daily Mail went full-throttle (the default setting for Mail news reportage) against British copyright law for banning the estimable British Sugarcraft Guild from allowing any Olympic imagery in their 2012 cake-baking competition.  All well and good (so long as you can stomach the Daily Mail’s firebrand style of writing) apart from the fact that LOCOG’s grounds for objecting to the cake contest were rooted in trade mark law and the specially enacted (and largely ridiculous) London Olympic Games and Paralympic Games Act 2006.

Photo (& cakes) by Micala, some rights reserved.

So why has copyright become a catch-all term for all intellectual property rights?

Are modern journalists really unable to get their heads round the distinction between the classes of intellectual property rights?  If so, they’re not alone.  Most lawyers outside of technology/media teams struggle to tell the difference, so why should the newspaper reading public be expected to know any better?  Especially if they are being spoon-fed by Bad Law news reporting.

As someone who works in the mysterious world of IP law on a daily basis, and who has been called upon to give training to lawyers, marketers and IT-bods, I now take it upon myself to offer up the following simple explanation:

TRADE MARKS (two words in the UK, please)

These protect any sign capable of graphic representation which distinguishes one business’s goods or services from another’s.  These include names (such as “Christian Louboutin”), logos (such as Apple’s apple), catchy slogans (like Audi’s “vorsprung durch technik”), colours (like Cadbury’s purple), or sounds (like the MGM lion’s roar).

Christian Louboutin has a US trade mark registration for the use of red soles in relation to ladies’ shoes.

Photo by verbeeldingskr8, some rights reserved.

PATENTS (that’s pah-tunts not pay-tents in the UK, please)

These protect inventions (processes or ways of doing things) and must be new and involve an inventive step.  UK patents cover things like Dyson’s bagless vacuum cleaner, Dunlop’s pneumatic tyre, Atkinson’s classic mousetrap and Churchman’s manufacturing process for chocolate (although strictly speaking the last three of these at least have expired).

For the avoidance of doubt, you cannot patent red-soled shoes (unless you have an innovative way of getting red paint onto the soles of shoes) – the concept of shoes is generally well-known.

Photo by Chen Hao Hsuan, some rights reserved.

REGISTERED DESIGNS

These aren’t as well-known as their brothers, and cover the visual appearance of a product, perhaps the contours of a Coca-Cola bottle.

Christian Louboutin has a design registration for a style of zip used on a shoe.

Photo by MCaveen, some rights reserved.

COPYRIGHT (never copywrite or copyrite anywhere in the world, please)

This protects the expression of an idea, be it a literary, dramatic, musical or artistic work.  It covers, well pretty much anything, and arises automatically upon creation.  It can be recognised by the use of the © symbol.

Christian Louboutin will have copyright in his shoe designs assuming they can be considered an artistic work (and Miss HotShot certainly believes this to be true), but if he doesn’t raise this in his court case, it is not accurate to describe it as a claim of copyright infringement.

Photo by Sam Teigen, some rights reserved.

That Busy Tone…

Photo from Walt Stoneburner, some rights reserved.

Yesterday I wrote about “tone of voice”. Today I’ve learnt that whereas I thought “tone of voice” was the marketeer’s equivalent of what lawyers call “look and feel” it actually addresses the way in which a company ‘speaks’ to its clients. This, for the avoidance of doubt is “speaking” not in the sense of an overpaid voice over actor, but in the sense of the “corporate voice” and style of writing.

Now, I was surprised to discover that businesses hire people to come up with this for them (is this my dream job? Paid wordmonging without recourse to legal text?!) it also leads to questions around ownership of the work.

We can all sit here and be reasonably comfortable that the look and feel of a document or website is protected by copyright. But in order for copyright to apply to a company’s “tone of voice” the tone itself must be a “Work”.

It is well established that copyright will only apply to the expression of an idea – and as tone of voice seems to relate to the way in which an expression of an idea is uh expressed, can it be a Work in itself?

Are we looking to establish our rights in the expression of the expression of our ideas?

That doesn’t sound like it’s an assertion we can make, but if we can pay someone to create this mythical tone of voice, surely we can find a way to ensure ownership of it is transferred to us upon completion.

How? Well, watch this space…

I Don’t Like Your Tone, Young Man

Photo from aepoc, some rights reserved.

Now, don’t get me wrong, I have a lot of respect for our friends in marketing.  They do a lot of good work, and in some industries – fashion and tech spring to mind – they convince me to buy lots of pretty things that frankly I don’t need.  Which must benefit some shareholders somewhere.

However, they do speak a foreign language, and working on brand creation matters will often expose you to this.

Today I was asked about “tone of voice”.  This is something I tend to associate with oral communication, in particular, arguments with Ms HotShot where she says “I don’t like your tone of voice”.

Apparently to a ‘marketeer’ however, it means the logo, colour and typeface that a brand uses to convey its values and qualities.  This is something that some brands pay thousands to consultants to develop, but often don’t consider the ownership of.

Now we lawyers like to call this “look and feel” and we like to be able to turn round and tell people that we own the copyright in it, especially if they start trying to imitate it.  But if the marketing bods haven’t considered this from the outset, we often find that, actually, we don’t.  And this can be embarrassing.

So tone of voice / look and feel – whatever you call it, make sure you own it, before you rely on it.

BBC’s derivative non-attribute licence to everything?

Photo from jcoterhals, some rights reserved.

The IP Kat has picked up on an interesting matter that has been doing the rounds on Twitter recently.

When Andy Mabbet, who blogs at www.pigsonthewing.org.uk, was following the BBC’s recent coverage of riots in Tottenham, he noticed that they were using photographs that were credited as simply “from Twitter”, so wrote to complain that they were not providing proper attribution.

Mr Mabbet’s complaint brought a curious (by which I mean fundamentally wrong) response:

Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain.

Now, this goes to the heart of a matter that is dear to anyone with an interest in promoting the principles of intellectual property law.  The idea that material available to the general public on the interent is somehow suddenly “in the public domain” is one of the most common misconceptions about the infringement of online material there is.  The prevalance of this erroneous view is only increased when eminent British institutions like the BBC come out in support of it.

Now Mr Mabbet was bemused (like the rest of us) by this response, so pressed the matter.  The BBC (hopefully suitably embarrassed) then released a follow-up statement which reads (and I may be paraphrasing somewhat):

Sometimes copyright law is a right pain.  You know, all that contacting people for permission to use their work, attributing it appropriately and giving credit to those individuals that scurry around taking great photos that we’d like to use – too much.  Gets in the way of saying the same thing over an over again on our 24 hour news channel.  So you know what?  When we think it is too much of a hassle to obey copyright law we just don’t.  Simple.

Is this any better?  I mean the statement itself does admit that the BBC’s earlier response was wrong, but is their new official line which admits that sometimes they will use a photo before obtaining permission to do so setting any better an example?

I’ll leave the last word to Merpel:

Merpel wonders if it is too late to apply the BBC’s logic to content on TV and iPlayer. After all, she thinks, television and the internet are platforms available to most people who have a TV set or computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. If so, she would not mind recording or downloading all of the BBC’s Spooks. Merpel is aware of copyright issues and is careful to abide by these laws.