Authored by: pjmelton on Wednesday, February 10 2010 @ 05:14 PM GMT+4

"Even though my graphic is protected by the First Amendment and fair use laws, I took the graphic down."

Why?

I'm not familiar with fair use laws, but if you are sure you are protected, why buckle?

---
"Economic laws are not made by nature. They are made by human beings." -- FDR

Authored by: SK-B on Wednesday, February 10 2010 @ 07:39 PM GMT+4

Authored by: pjmelton on Wednesday, February 10 2010 @ 08:37 PM GMT+4

Here is a discussion of fair use that deals specifically with trademarks rather than copyright:

"[C]ertain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection. ... In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark."

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

However, none of that addresses why shaw caved so quickly.

---
"Economic laws are not made by nature. They are made by human beings." -- FDR

Authored by: SK-B on Wednesday, February 10 2010 @ 09:19 PM GMT+4

Since there a number of justifications for fair use, can someone explain the actual reason that Shaw is entitled to fair use of the Mocha Joe logo?

Authored by: cgrotke on Wednesday, February 10 2010 @ 09:36 PM GMT+4

Fair use could take many forms - a photo of the store showing the
logo is fair use, for example. You could write a story about the store
and use their logo as illustration.

Altering the logo and adding something unique to it goes a long way in
supporting fair use. It would have to be different in some way, and
not lead to customer confusion for the logo owner.

Logos are tough, because you run into additional laws of trademark.
And corporations are quick to threaten, even if they are wrong.

I think you'd have to see it, in context, to determine if it was fair use.

Comedy Central recently asked an audience to stay in their seats
during a taping so that a comedian could come out and retell one
joke. The original joke ended with him singing 4 words "We Are The
World"... Comedy Central made him re-do it, saying they didn't have
the "rights" to "the song" - those four words.

Authored by: SK-B on Wednesday, February 10 2010 @ 10:08 PM GMT+4

That is useful information.

But what I am asking is for someone (maybe Shaw) to tell us specifically why the fair use exception applies to his Facebook use of the Mocha Joe's logo. Shaw was using it as his personal Icon, which is in effect a logo

I can understand why Mocha Joe would find this objectionable because it is their logo, representing their business. I think using someone else's logo as your own logo is quite different than showing your logo as one item which happens to appear in a photograph of their store.

So again: My question is, which of the fair use exemptions apply to Shaw's used of Mocha Joe's logo as his Facebook icon?

Authored by: imhennessy on Wednesday, February 10 2010 @ 10:54 PM GMT+4

I think the key is that the logo was altered, and, presumably recognizable as refering to the original logo, and, at the same time, clearly not the original logo.

I think I saw this logo on facebook. I did not follow any links or discover it's origin. but I can understand why they might not want to have a big radiologic hazard sign connected with their name.

So, I understand that it is objectionable to them; it was not clear to me that it was satire; it could as easily have been authorized use to make a point that Mocha Joe's was endorsing.

It probably is Fair Use, though. The thing about Fair Use, as it now stands, is that it is what is termed an "affirmative defense." That means that it infringes the rights of the copyright or trademark holder, but is allowed as an exception.

ivan

Authored by: pjmelton on Wednesday, February 10 2010 @ 10:59 PM GMT+4

Shaw described the logo as "a satire graphic," which is why I quoted that section from Harvard Law about parodies and critiques. But I agree that without actually seeing the logo, it would be pretty difficult to determine whether it was "fair use" or not. You can certainly see why MJ's would not want to be associated with VY, satire or no. It is hard to imagine why they would even be seen as related to VY in any way, but maybe I'm missing something.

---
"Economic laws are not made by nature. They are made by human beings." -- FDR

Authored by: pleasant on Wednesday, February 10 2010 @ 11:28 PM GMT+4

I do not believe it is protected by the first amendment. Freedom of speech does not guarantee you the right to use the property of someone else for your own purpose. That is why we have trademarks and copyrights. People misuse "freedom of speech" as a protection.

"Freedom of speech in the United States is protected by the First Amendment to the United States Constitution ... Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy, such as racism, are generally permitted. ... Other limitations on free speech often balance rights to free speech and other rights, such as property rights for authors and inventors (copyright) ..." ~Wikipedia

Authored by: pjmelton on Thursday, February 11 2010 @ 12:25 AM GMT+4

True, but you should also look at the discussion of fair use in the thread just above your comment. This is a very nuanced and confusing area of law.

---
"Economic laws are not made by nature. They are made by human beings." -- FDR

Authored by: SpudHill on Thursday, February 11 2010 @ 12:58 AM GMT+4

It just seems to make sense that any of downtown's business establishments would not want to see their logo used in connection with Vermont Yankee radioactive signs.

Maybe Shaw could let us know why he even thought that was appropriate, what he saw as the connection or did he just pick out a downtown business to make a statement about the problems at Yankee.

I certainly don't see this as a negative reflection on Mocha Joes....why would they want a recognizable version of their logo used in this manner? Freedom of speech......c'mon why would you think a food establishment would want their company ID used in connection with Yankee. As for the Obama coffee, sorry but big difference there, it was more publicity and in a positive manner so even, and who knows whether they did or not, if they didn't get permission it's a big leap to compare that. The better comparison would be if they had used an image of Obama dumping nuclear waste into the Connecticutt and somehow I'll bet they would have heard from his campaign just as you heard from them.

Authored by: Lee on Thursday, February 11 2010 @ 01:14 AM GMT+4

From a business owner's perspective, it's important to always vigorously defend your intellectual property whenever it is used without your permission. Otherwise, in the future, in another case where your mark is potentially infringed upon, the previous cases where you chose not to vigorously defend can be used against you and weaken your claim to the mark. Mocha Joe's is acting prudently, in my opinion.

Authored by: vtstream on Thursday, February 11 2010 @ 01:49 AM GMT+4

"Mocha Joe's is acting prudently, in my opinion."

Plus, they did say "Please"

Authored by: cgrotke on Thursday, February 11 2010 @ 05:47 PM GMT+4

There is always the "moron in a hurry" test:

http://techdirt.com/articles/20100210/0048218105.shtml

This article talks about a Florida high school who copied a logo for use as
their mascot, and the ensuing lawsuit.

And here is another about Apple vs Apple:

http://www.techdirt.com/articles/20060330/1829246.shtml

Authored by: imhennessy on Thursday, February 11 2010 @ 10:10 PM GMT+4

I just skimmed that one my self, and saw that trademarks don't get the same protection as copyrighted works. It seems that they're supposed to ensure the consumer knows who/what they're dealing with.
Strangely, that may offer more protection in this case. It seems pretty clear that any confusion that occurs would be harmful to the Mocha Joe's brand.

It's a big mess, and there doesn't seem to be any way, short of lengthy expensive trials, to resolve these questions in too many cases.

ivan