It looks like there might be a showdown in Houston as the hometown Coogs take on the National Football League (NFL) over the colors of their alternate uniforms. At the beginning of the 2023 season, the University of Houston Cougars debuted alternate uniforms, sporting familiar shades of light blue, red, and white. The color scheme hearkened back to the halcyon days of the “Luv Ya’ Blue” era of the Houston Oilers. Ordinarily, such nostalgia would be welcome. Hometown fans embraced it, but the NFL pulled out the welcome mat from below the Coogs’ cleats.
Read moreIntellectual Property and the NFL
In 2017, NRG Stadium in Houston hosted more than 70,000 football fans for Super Bowl LI. To do our part in supporting the event, we considered the legality of creating and sharing GIFs that feature NFL footage. In recognition of this year’s big game, Super Bowl LIII, which kicks off in Atlanta at 5:30 pm (CST) on Sunday, February 3, we are revisiting the topic of using NFL clips to create and share GIFs on social media. Many fans will capture game video with the hopes of turning a fantastic play or a memorable touchdown celebration into a GIF for all the world to see on Facebook, Twitter, and Tumblr. For its part, the NFL strongly discourages the use of its images, so for those of you hoping to create the next viral meme, let the law be your guide.
The NFL is notoriously protective of its brand. All text, images, photographs, video, audio, and graphics are tightly controlled, and any use of the NFL's content must comply with the NFL.com Terms and Conditions Agreement. Nonetheless, ripping images or video from television broadcasts is a popular way to create the GIFs and other graphic memes that fill our news feeds, and football replays are some of the most widely shared.
When news outlets use GIFs to enhance a story, they often rely on the fair use defense, but legal experts question the plausibility of such claims. Ricardo Bilton, Staff Writer at Digiday.com, describes the legal murkiness of sports highlight GIFs, saying that fair use may not apply. When publishers rip video highlights and repost them unaltered online, those content providers reap the benefits of increased ad revenue. However, as the popular websites, Deadspin and SB Nation, found out, fair use has its limits, and legislation such as the Digital Millennium Copyright Act can be invoked to support claims of copyright infringement.
Those who appropriate content without paying the rebroadcasting fees that sports leagues, including the NFL, typically require must be careful. As long as the new content is "derivative of the original and does not create economic competition for copyright holders," the NFL will evaluate it on a case-by-case basis.
As for the armchair quarterback and amateur image manipulator, the same rules apply. Remixing and repurposing content to parody or critique your favorite plays of the game seems to follow the spirit of fair use. Unless the NFL sends you a takedown notice, your GIF of the game-winning catch, modified for new utility and meaning with no intent to profit, is probably safe.
But what about using the official name of the Big Game to advertise an event, for example? The Electronic Frontier Foundation has considered this very question, saying that, in their estimation, the terms “Super Bowl” and “Super Sunday” can be used to promote game day parties. Specifically, they mention the “nominative fair use” of trademarks:
“Having a trademark means being able to make sure no one can slap the name of your product onto theirs and confuse buyers into thinking they’re getting the real thing. It also means stopping an instance where using the name might make someone think it’s an endorsement or sponsorship. If neither of those things happens, you can call the Super Bowl the Super Bowl. The ability to use something’s trademarked name to identify it—even in a commercial—is called “nominative fair use.” Because the trademark is its name.”
The takeaways, according to those who have explored this topic (See links throughout this blog post.), are the following: Calling your Super Sunday celebration what it really is – a Super Bowl Party, not just a Big Game Party -- is probably okay. And hitting record on your DVR to capture all the best plays for your own fair use GIF is likely to be okay as well. May your Super Bowl Party be a day to remember, may the best GIFs go viral, and may the best team win!
Not Your Granddaddy's IP
Even beatniks have rights.
Read a good book lately? If you flipped a few pages in, you probably saw a small copyright notice. Watched an episode of Shark Tank? You may have heard an inventor excitedly describe their patents, trying to start a bidding war. Planning to tune into the Super Bowl? The sheer volume of registered trademark symbols on the logos might make you light-headed before halftime.
As content consumers, we are generally familiar with the intellectual property protections available to writers, musicians, product developers, and sports leagues. But what about less mainstream creators? While some find remedy in the law, others must carve out protections elsewhere.
Consider hair. Styling is an art, and hairdos all across the country are crafted by experienced, licensed practitioners who apprenticed and studied their way behind the chair. Occasionally, a stylist will be lucky enough to create an iconic look such as the beehive, the fade, the moptop, the undercut, or the Rachel. These artists may not always be able to protect their intellectual property in the actual haircut, but they can certainly patent any technology they have invented to help you achieve that perfect look. For example the Bumpit, as seen on TV, patented since 2009.
Anyone can make a cheese cracker, but woe unto he who incurs the wrath of Pepperidge Farms by shaping that cheese cracker like a fish.
Meanwhile, in restaurants, chefs are having a moment as the internet and basic cable spread foodie particularity to every hamlet with a Main Street. Many people are surprised to discover these innovators possess few legal rights to their creations, as recipes are considered such a basic aspect of culture that they are not subject to copyright or patent. No wonder many chefs are increasingly protective of their food presentation, one creative aspect they argue they can protect, as dining rooms increasingly move to ban food photography in an attempt to safeguard their designer plating. Lawsuits regarding plating are increasingly common in America and around the world, as a chef’s unique vision can be spread from one continent to another before you can say “Instagram.”
Famous clown Emmett Kelly has been depicted on an egg, despite having been an American.
In the United Kingdom, clowns have long banded together as a community to avoid redundancy in their individual face makeup design, by maintaining a privately held registry… of painted eggs. These eggs, each expertly illustrated by hand in the unique style of Britain’s most accomplished clowns, are kept on public display in an East End museum, housed inside a church. The collection is known to merrymakers worldwide simply as “The Clown’s Gallery.” An egg registry now also exists in the United States, where intellectual property rights in clown makeup are similarly unestablished. The world of clowning is relatively small, so this type of cooperative norms enforcement works more effectively than contentious, and potentially unaffordable, litigation.
Clubs such as LA's iconic The Comedy Store are sometimes said to display a special light to comics on stage when a known joke thief enters the building.
The laughs are just as hearty, but the stakes much steeper, in the high dollar world of stand-up comedy. The guy chasing yuks at your local pub may rake in $50 on a good night, but at the top of the heap comedy generates millions every year for television executives, late night hosts, and elite comics. A top, household name professional comic might produce 20 minutes of solid material in a year. Therefore, the theft of even a single joke can represent a substantial portion of a comic’s annual output. (That George Carlin was able to churn out hour long specials year after year is part of why he will always be considered a comedy god.) A mere ten years ago, disputes over joke theft were likely to be handled almost entirely through community enforced methods such as banishment from clubs, or even getting roughed up in the parking lot. But as the monetary value of jokes continues to increase, lawsuits over joke theft are beginning to dot the landscape, and judges are holed up in their chambers contemplating the relative originality of competing Caitlyn Jenner jokes.
Mike Tyson's famous tattoo that started it all.
Finally, tattoos used to be an ultimate mark of life on the cultural fringe (one of P.T. Barnum’s “freaks” literally just had a bunch of tattoos), but these days about 1/3 of American adults sport some ink. While tattoo artists expect their work to wander the world in full public view, they are reticent to allow others to profit off their designs. In one suit that settled, the creator of Mike Tyson’s iconic tribal face tattoo sued the producers of the hit film “The Hangover 2” for precisely replicating his work, as a key plot point, without permission. As a result of this and similar actions, many celebrities who hope their distinctive ink will become part of their personal brand now seek copyright waivers from their tattoo artists as a standard part of the transaction.
Learn more about the weird world of intellectual property on the margins through these links:
- https://www.indyweek.com/indyweek/can-you-patent-a-hairdo/Content?oid=1197205
- https://repository.jmls.edu/cgi/viewcontent.cgi
- http://www.trademarkandcopyrightlawblog.com/2016/06/eat-your-art-out-intellectual-property-protection-for-food
- http://www.bbc.com/future/story/20171206-the-fascinating-reason-why-clowns-paint-their-faces-on-eggs
- https://www.npr.org/sections/thetwo-way/2017/05/17/528680860/can-you-copyright-your-dumb-joke-and-how-can-you-prove-its-yours
- http://www.abajournal.com/magazine/article/tattoo_artists_are_asserting_their_copyright_claims
- http://www.latimes.com/opinion/op-ed/la-oe-raustiala-tattoo-copyright-20131006-story.html
Latest & Greatest – The Intellectual Property Handbook: A Practical Guide for Franchise, Business, and IP Counsel
Written for non-IP specialists, The Intellectual Property Handbook: A Practical Guide for Franchise, Business, and IP Counsel provides a substantive and practical overview of the most common intellectual property issues, including trademarks, copyrights, patents, trade secrets, cyber law, and social media issues. Besides describing the federal registration process, the authors explain basic trademark principles, everything from forms and types to the strength of the trademark and address the issues to consider when choosing a trademark. Equally important is the discussion of how to protect those rights and the types of legal actions to take to enforce those rights. In addition to highlighting domestic trademarks, the authors also cover domain names and trademarks on the Internet. Look for a discussion of the Anticybersquatting Consumer Protection Act and the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned Names and Numbers.
Interested in copyright? The authors devote an entire chapter to the topic and define subject matter that is copyrightable, detail the rights granted by copyright, navigate the waters of the registration process, and address the issue of infringement.
Looking for information on patents? The authors have got you covered there as well. They explain what a patent is and what can be patented and help you with the patent application process. The authors also offer some patent protection strategies and enforcement remedies.
The chapter on trade secrets is full of useful information, such as what a trade secret is, its definitional elements, the steps to be taken to protect the trade secret, and the remedies available should the trade secret be misappropriated.
Lastly, the authors discuss data privacy and security, cloud computing, and social media and the IP concerns that may arise during the use of social networking services, including issues relating to trademark, copyright, personal information, and employee information.