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Copyright, Trademark, and Tradedress

Copyright, Trademark, and Tradedress

All modesty aside, I consider myself pretty familiar with intellectual property law. I didn't mean to become so well acquainted but having been sued over trademark and dealing with Apple, Microsoft, and going through the patent process have taught me what is what.

Unfortunately, most people on the Internet know very little on these issues. That doesn't seem to stop them from writing highly charged opinionated articles that make broad claims of intellectual property.

First off, forget what you think you know about IP law in theory. Theory and practice are two different things:
http://www.avault.com/developer/getarticle.asp?name=bwardell8

In real life, intellectual property protection goes as far as your money will take you. So forget the "Oh well Microsoft couldn't do anything about it because they'd be in the wrong on issue X, Y, Z." Wrong. If someone has money and you don't, they can grind you into the dust. You tick off a company and they can squash you like a bug no matter how righteous you think. And if you're a company, a bigger company can do the same to you.

That said, let's talk about the issue as it relates to skinning:

There are 3 issues that crop up:

1) Copyright violations
2) Trademark violations
3) Tradedress violations

1) Copyright violations are what are known as rips. People who aren't familiar with IP law think everything is a copyright violation. They're wrong. Copyright law is very specific. And it has a lot of gray areas. It has to do with taking someone elses material and using it without authorization and reproducing it. There is a lot of gray area on derivative works (hence where the lawyers come in). This is particularly true in digital art. If I take your wallpaper, apply tons of filters to it, and resubmit it, am I violating your copyright? It's a gray area that only the moderators of a given site or the court system can really decide, typically on a case by case basis.

Here at WinCustomize, we throw out copyright violations. Rips are copyright violations. You take someone's wallpaper and upload it here, that's a copyright violation and it's history. You take someone's skin and upload it here, same deal. You take someone's Hoverdesk theme and port it to Litestep without permission that's a copyright violation and it's gone.

The gray area comes up when you've made significant changes to it. Let's say you've taken a Kaleidoscope theme and ported it to WindowBlinds but doing so changed the actual graphics quite a bit but the final skin looks pretty much the same. Does that violate copyright? That's a harder case but it DOES violate trade dress which we'll talk about in a minute and we'd delete such a skin here. Having a gray copyright issue is one thing, add tradedress and that puts it over the top.

2) Trademark. This is where you take something that is designed to be associated with something else and use it for your own purposes.

There are two types of trademark issues:
a) Unauthorized use of trademark
b) Trademark violations.

You start up a fan site for Episode 2 and have Star Wars logo and other things on there from the movies and you hvae unauthorized use of trademark. Some companies work hard to enforce their trademark and stop fan sites. The X-box and Lord of the Ring skins here are unauthorized uses of trademark. We let skins like that here because they fall in the same category as fan websites.

Trademark violations are a different matter. That's where you're using someone else's trademark and re-defining it. This creates confusion which is why trademarks were created in the first place. If I took that X-box logo and used it to create "X-box Computers" which aren't affiliated with the game machine at all or are using it to sell a product designed to give users a false association then that can be a serious problem.

The two are quite similar and sometimes they decide that the former falls into the latter. Hence, if I start up a Coca-cola fan site they may be okay with that until I start selling Coca-Cola T-shirts. Then they may shut me down for giving a false association with their trademark.

3) Trade dress
This is fairly specific to skinning actually. When Apple demands people get rid of Aqua skins, they refer to Trade DRESS violations unless the skin actually uses the Aqua images and then they can bring in copyright violations as well (yes, icons ARE protected by copyright).

Tradedress is similar in enforcement to trademarks. Many many sites use the XP look. This is an unauthorized use of trade dress. The same is true of Luna skins. Microsoft is well aware of these and thus far has not objected.

So why do sits like Wincustomize allow OS skins? Aren't they rips? Nope. They do not violate copyright (unless they literally stole the bitmap resources which is possible but hard to tell). But they are unauthorized use of trade dress.

So when people argue that skin sites have double standards on ripping, the fact is, no, they don't.

Skins Sites police copyright violations. Rips are copyright violations. We find them, we eliminate them.

We trade the latter two issues (trade dress and trade mark) much like the equivalent of fan sites.

Geocities and Yahoo have zillions of Star Trek, Buffy the Vampire slayer, Star Wars, Lord of the Rings, etc. fan sites on them. There are fan sites for most popular games, etc. WinCustomize treats this in the same way as Geocities and Yahoo handle the fan sites they host - if the trade dress/trademark holder objects, we'll help them enforce their rights. Otherwise we'll work on the assumption that they're sane companies that want positive expressions by fans to exist.

I for one would love to see an Episode II theme. And I suspect if George Lucas were into skinning he'd want one too.


13,221 views 42 replies
Reply #26 Top
Koasati, read the COPYRIGHT AND TRADEMARK section of your guidelines: https://www.wincustomize.com/guidelines.asp it should answer your question.
Reply #27 Top
Spiderman logon:

Yes, we'd love to have Spiderman logons.

However:
The spiderman logon was literally a wallpaper created by someone else and just turned into a logon.

Therefore it's a copyright violation, therefore a rip, therefore it has to go.

If the person had themselves created the image (i.e. made their own spiderman wallpaper) then we would have kept it if it passed moderation (i.e. quality).
Reply #28 Top
Koasati: if the person would have drew himself the Spiderman character, that is where some people differ in opinion and it would most probably have caused a discussion among the admins.
But, to be totally honest, I don't believe that will ever be a problem. I have yet to see a logon/theme/skin with a movie character that the artist would have drawn himself. And I doubt I will ever see one. Pretty much all the time, it's just taken from the web site, with sometimes some small modifications.
Reply #29 Top
I OWN the copyright to a Finder GUI, not Apple-it has been like it since September 2001, when I first started on writing one.
Reply #30 Top
and when do you think apple's first finder gui premiered in public? it was 1984 [unless you count the lisa.] it was inspired [with permission] by experimental work done by xerox. it was then copied by microsoft, who a short time later worked out a deal with apple [which they've regretted ever since.]

also, what you're referring to would really not be copyright, but rather trade dress. copyright would refer to the code itself, unless i'm mistaken.
Reply #31 Top
You are correct. Apple's look and feel lawsuits have been based on trade dress.
Reply #32 Top
Ok, I'm getting it, but what if I take a series of photos from the star wars II web site, and mix them together to create a unigue collection. (see http://www.themexp.org/view_info.php?id=662 It is a Logon Theme I made). The top is one picture from the web site, the bottom is a second picture. I did some easy filters, and made the lightsaber bigger.

Now I know the pics are copyright. But since I mixed them together is it considered fan art, or copyright infringement.

One more thing, on the top is a episode II logo, the bottom is a lucasarts logo. I placed them there to let people know that the film is Episode II, and that it is by lucasarts. I did not intent for it to be copyright logo infringement.

Just trying to stay on the thin grey line

Reply #33 Top
Yes...it is commonly called 'fan-art', but is also copyright violation.
It doesn't matter how much you arrange the pics, you weren't given permission to display them in any arrangement publicly, but you are free to 'do it' on your own private computer.
That is the difference....
Reply #34 Top
OK, here's my Findetr menu layout:
Babya Menu, File,Edit,View,Special, Help.
Reply #35 Top
Would it be ok if I called a program MyWindowsFX? Can we have a page at Stardock's website listing Stardock's trademarks, like most other sites may have and a guidline for trademark usage?
Reply #36 Top
Well, I've created some fan-art for witch I got the copyright licence, check DeviantArt, I've been submitting some logons there, most of it has come from a page witch explicitly allows being coppy'ed it's for fan-sites/fan-art, so if you can't copy it, it's useless

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Reply #37 Top
So if I wanted to make a GameCube skin (which I'm not), I would have to get permission from Nintendo? Also, is it wrong for people like ign to use box art, videos, images, etc... of games on their website? Or do they get permission? I don't know, because Microsoft, Nintendo, Sega, Sony, and lots of other companies advertise on their website, which they use their images, box art, videos, etc... ???

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Reply #38 Top
It depends.

Let's say you want to make a PlayStation 2 theme. Assuming you were creating the graphics yourself (i.e. no copyright violation) then the issue becomes trademark/trade dress. Different companies have different feelings on that.

Generally speaking, things that PROMOTE a company or product are smiled upon by the holders of the IP. I.e. Paramount likes Star Trek sites because it promotes their show.

The key being that it is promoting a non-related product or service.

Different websites are more stringent than others. WinCustomize is probably about the most stringent on the net because we kick out copyright violations often when they are being used to promote a non-related thing (i.e. if someone uploads a Spiderman wallpaper created with artwork from a Spiderman poster we are likely to delete it strictly because it's a copyright violation. Other sites are likely to keep it though as they take a more "if it promotes a non-related product/service we'll take it" view).

People tend to over complicate the issue usually in order to try to arrive at the conclusion they want. IP laws were created to protect artists so that the incentive to undertake creative endeavors would not be harmed. That's really the bottom line of it. That's why ripping is so bad. It's not just that you're using someone else's stuff without their permission but that you're taking away their incentive to create new things.

What good is working on something new and original if someone else can get a name for themselves just ripping off your work? There are certain people already getting quite a following purely by stealing other people's work.


Reply #39 Top
I thought your article was VERY clear concise and to the point, It cracks me up when I see the titles to some of the articles here before I actually read them because the first thing I think of is "what a can of worms they are opening here!" Most of the articles here are good but is seems there are people just waiting....watching for a reason to challenge another's help in understanding a topic.
You did mention gray areas didn't you? All should know that "gray areas" are hardly ever turned to clear!


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Reply #40 Top
I read an article in a newspaper, years ago, about McDonalds enforcing it's trademark rights. They were sueing a hamburger joint in Israel over the name of one of their burgers, the McDavid. McDonalds won. They must have had a very good burger.

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Reply #41 Top
Well, I have an example:
Aqua-Apps are applications that look like ones in OS X. And they look so close to the Mac OS X applications.
See:
http://www.aqua-soft.org/header1.html- look at the screenshots.

http://www.aqua-soft.org/Resources/AFBigShot.jpg




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Reply #42 Top
Dead teddy er... link

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