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   pay no attention to the man behind the curtain
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   Author  Topic: pay no attention to the man behind the curtain  (Read 1032 times)
Mo
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pay no attention to the man behind the curtain
« on: Apr 25th, 2006, 4:31pm »
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I believe I've entered Oz, and no one is listening (I'm smiling now, and I do appreciate what you collectively do). I've inquired a couple of times about copyright on food items. I'm photographing for publication and would like to know if things that have become everyday icons - conversation hearts (the valentine hearts with words), goldfish, peeps, etc. can be considered intellectual property? Some are much older than others in their creation and have been around a long time, while others are relatively new...
 
am I being too specific in my question, or is it not interesting enough for a response?
 
again, I do appreciate your time and intellect...
 
Mo
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JSonnabend
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Re: pay no attention to the man behind the curtain
« Reply #1 on: Apr 26th, 2006, 7:12am »
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All of the items you mentioned have some elements of protectable intellectual property.  The question is, what exactly is the extent of that protection?
 
It's difficult to answer your question with any greater level of specificity without knowing exactly what it is you want to do, or at least more specifically what aspect of what product you're interested in discussing.
 
Finally, the fact that certain things have become "everyday icons" usually indicates stronger intellectual property rights, not weaker as you seem to imply.  Cases in point: McDonald's "golden arches", the New York Yankees' "NY" symbol, and perhaps, even, Campbell Soup Company's goldfish cracker design.
 
- Jeff
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SonnabendLaw
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Mo
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Re: pay no attention to the man behind the curtain
« Reply #2 on: Apr 26th, 2006, 9:09am »
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Thanks so much for your response.  
 
More specifically, I'm working on a greeting card line. I'm photographing  candy conversation hearts as a secondary visual in the photo. I believe these are made by more than one source, and have found various iterations of them on the web. There are glass beads, larger candy dishes, foam for scrapbooking, etc. The candy itself I found on e-bay packaged by a company that claims it is made fresh. This is not the original company that produces it every valentine's.  
 
I understand that McDonald's arches are part of it's identity or logo. Goldfish are not part of Pepperage Farm's logo, but they are unique in the marketplace, so I would be more concerned about using them.  
 
If for instance I were to photograph for my greeting cards something that was popular in the 50's, so much that there were multiple manufacturers of the same basic item, can I assume that it is not copyright protected? For instance the smiley face.
 
again, thanks for your time...
Mo
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JSonnabend
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Re: pay no attention to the man behind the curtain
« Reply #3 on: Apr 27th, 2006, 7:05am »
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To the extent that anyone holds a valid copyright on the candy "design", your photographs would likely constitute copyright infringement, at least technically.  Whether or not such infringement would be excused as "fair use", I can't say.
 
If the candy heart configuration is available from several sources (and the sources are really different from one another), then the chances are greater that no party has any trademark rights in them.  It may also be more likely that no one is claiming copyrights in the design, although that's less certain (there may be licenses involved).
 
Ultimately, there is some risk to what your doing, but I don't imagine it's particularly high.  That said, I'm not offering a legal analysis of your situation here, as that would be inappropriate.  You'd be well advised to have an attorney look at this directly and do the necessary factual and legal research before advising you on the real risks involved.
 
- Jeff
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SonnabendLaw
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Tomcat
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Re: pay no attention to the man behind the curtain
« Reply #4 on: May 1st, 2006, 11:44am »
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Here is a related article about the Goldfish trademark:
 
Quote:
Federal court upholds Goldfish trademark - protection of Pepperidge Farm's Goldfish snack cracker trademark from RJR Nabisco Inc.'s snack cracker featuring the same symbol - Brief Article
Prepared Foods,  March, 1999  
COPYRIGHT 1999 Cahners Publishing Company
COPYRIGHT 2000 Gale Group
http://www.findarticles.com/p/articles/mi_m3289/is_3_168/ai_54336671

 
The New York federal court ruled that the Goldfish trademark is "distinctive and famous". I am not sure how this would apply to photographs of the Goldfish crackers.
 
The court used the word "blurring" of Pepperidge Farm's trademark and ordered Nabisco to recall the new crackers that had already been shipped out to retailers.
« Last Edit: May 1st, 2006, 8:12pm by Tomcat » IP Logged
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