Before I comment, I need to offer my standard disclaimer: Anyone who takes legal advice from a graphic designer is an idiot.

That said, Katherine's problem raise several interesting questions and distinctions. The first is that, although a trademark may also be protected by copyright, copyright law and trademark law are quite different in structure and intent.

First, an aside/reply to Carlos'
> It would be nice to see worldwide consensus on this subject, but if they can't even come to terms with global warming...

I hope not. As much as international standards are good in many ways, international agreements on "intellectual property" almost inevitably incorporate the worst of every system to the greatest benefit of large IP interests (movie, music, and pharmaceutical companies lead the pack.)


The American copyright system is supposedly based on the idea that we want to encourage, as the US Constitution states "the useful arts and sciences." Since the assumption is that freeriding erodes creativity by making it economically less viable, copyright provides a limited monopoly for a limited time to offset that problem. The British system (including Commonwealth countries) has the same basis. The patent system works on the same principle.

The French system (shared by Portugal and many other countries) doesn't look at creation strictly as a question of economic encouragement. It's based on the idea that creative work is inextricably connected to the dignity and reputation of its creator. 

Trademark goes back to ancient times. A potter would place a mark at the bottom of a vessel to indicate its maker so buyers could be assured about its origin. The basis for trademark protection is the protection of consumers. The problem of trademark infringement is not economic freeriding; it is consumer confusion. Courts have added to trademark law with decisions protecting against "trademark dilution." Even if nobody thinks my McDonald's Plant Happy Meal Manure actually comes from the hamburger chain, it would be found to diminish the value of their trademark.

So, basically, fair use does not apply to trademarks (at least under US law) because fair use is a set of exceptions to copyright.

While it is possible that the creator of a trademark might try to separately enforce a copyright on a visual trademark, I've never heard of it happening. It seems like professional suicide for a graphic designer.

The other problem that Katherine’s situation raises is "orphan works." It’s usually a problem with copyright. For instance, I am among the many people who have reprinted Beatrice Warde’s "The Crystal Goblet." I can’t find anyone who has any idea who inherited Mrs Warde’s estate. Luckily, our publishers haven’t demanded clearance because, as far as I can find out, no such clearance is possible. Rights to one of the most important pieces of writing in the history of graphic design are in a legal black hole.

And yes, publishers are gutless. Understandably so--publishing isn't generally a high profit business and infringement suits can soak up enormous amounts of time and money even for the side that prevails legally. It's the reason that museums get away with charging reproduction fees to for items in their collection even when the images are clearly in public domain. (The museum or collector almost never owns the copyright to object in their collection anyway so PD status may be moot.) Publishers can say that it’s the authors' problem to get clearance even if not actually required because that doesn’t cost the publisher anything. Under US law, it is illegal to make illegitimate patent claims but not, unfortunately to make illegitimate copyright claims. Too bad.

By the way, it is not true of all governments but anything commissioned or created by the US government is in public domain under US law. A few logos and seals are protected from unofficial use and it would, I suppose, be possible for the US government to claim copyright in venues outside the US (but I haven't run across such a case.) Some other governments use copyright to avoid the publication of documents that would embarrass them. The US uses other sorts of coercion instead. 


Gunnar

Gunnar Swanson
East Carolina University 
graphic design program

http://www.ecu.edu/cs-cfac/soad/graphic/index.cfm
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Gunnar Swanson Design Office
1901 East 6th Street
Greenville NC 27858
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http://www.gunnarswanson.com
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+1 252 258-7006


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