[Foundation-l] Fair Use and Registered Trademarks

Fri Jul 15 22:30:43 UTC 2005

Rowan Collins wrote:

>>It can mean that the author has no right to be credited, but does it
>>mean that someone else can claim to be the author ?
>>    
>>
>
>[[en:Moral rights]] states: "...[the US] still does not completely
>recognize moral rights as part of copyright law, but rather as part of
>other bodies of law, such as defamation or unfair competition." In
>other words, the inalienable right to attribution does not exist in
>any form (except for a limited coverage for visual works).
>
>Meanwhile, a quick bit of research shows that, while "moral rights"
>are now partially enshrined in UK law, they expire along with the
>copyright on the work in question. [Since these are fairly recent
>rights and also require explicit assertion, no qualifying work is yet
>old enough for them to have existed and then expired, but
>theoretically they will.]
>
>As far as I can see, it is perfectly logical from this that there is
>no legal protection in either of these jurisdictions against a work
>whose copyright has expired being passed off as the work of someone
>else. That may seem surprising, but I think it is true.
>  
>
This was one of the motivations for the GNU Public License (GPL), as 
well as the Berkley Software Distribution License (BSD), at least in 
respect to American law.  If for some reason you put computer source 
code in a public domain setting, there is nothing that would stop 
somebody else from simply taking the content and claiming authorship, or 
for that matter re-copyrighting the content under a new name.  Among 
many goals of the Gutenberg Project is to openly declare and provide a 
source for public domain works, so that their content can't be locked up 
in some copyrighted work in the future that can't be extracted without a 
huge legal hassel.

Getting back to the topic, however, if something has passed into the 
public domain, can you use a trademark that is related to that 
copyrighted work?  For instance, if and when "Steamboat Willie" goes 
into the public domain (Disney fights real hard to keep that from 
happening), can you use Micky Mouse in a manner that the Walt Disney 
Corporation would find offensive?  Like wearing a swastika or burning a 
cross or flag?  Can you even refer to the movie clip as "Steamboat 
Willie"?  Is the name Disney even trademarked so can you even 
acknowledge that Walt Disney was one of the animators for that movie?

More to the point at hand, can you use the term "Encyclopædia 
Britannica", which is a registered trademark even though a creative work 
with that name has its copyright expire?  This question is of particular 
personal importance because my name is now attached to the project on 
Wikisource, even though people other than I have made the edits to put 
that name on the project.  If we need to rename the project, it needs to 
be done sooner than later.

-- 
Robert Scott Horning