Re: Coipyright in the Hollywood Sign

>From: Tyler Ochoa <TTOchoa[_at_]scu.edu>
>Subject: Re: [CNI-(C)] Coipyright in the Hollywood Sign
>
>Amalyah - The mind boggles indeed. This is an outrageous claim. Feel
>free to forward this response to Mr. McCracken and to CNI-Copyright.
>
>========================
>
>With regard to copyright, the Hollywood Chamber of Commerce is blowing
>smoke. In my opinion, there is no way that the Hollywood sign is
>copyrightable. A particular photograph of the Hollywood sign would of
>course be copyrightable; but unless the staff member intentionally set out
>to reproduce such an existing photograph, he or she (and his or her
>employer) should not be liable for taking and publicly displaying an
>independently-created photograph of the sign.
>
>Sadly, the U.S. law of art in public places is not as clear as in the
>U.K. We have a statutory exception for architectural works: if a work of
>architecture has been constructed, and the building is located in or is
>ordinarily visible from a public place, then it is not an infringement to
>take, distribute or display a photograph of the building. We do not have
>a similar statutory exception for art that is displayed in a public
>place. So, if a work of art is displayed in public, the copyright owner
>has at least a colorable argument that "reproducing" the work by taking a
>photograph of the work, and publicly "displaying" the work by putting the
>photograph on the Internet, is an infringement. However, I think it is
>much more likely that a court would hold that this particular work is
>either not copyrightable at all, or if it does have a valid copyright,
>that it is not infringed in these circumstances, because the hills cannot
>be photographed without capturing the sign as well. This is a non-profit
>university, so the public display is also likely to be a fair
>use. [Indeed, the First Amendment might require an exception here, even
>though it is generally very weak in copyright cases.]
>
>Reasons why the Hollywood sign might not have a valid copyright: under
>U.S. Copyright Office regulations, words and short phrases cannot be
>copyrighted, and a single word in a common typeface could not be
>copyrighted; even if the sign were considered a piece of sculpture, it is
>doubtful that it bears a copyright notice, so it might be considered to
>have been published without notice before 1989 (when the U.S. abolished
>the notice requirement), and therefore to have lost its copyright
>[although public display may not itself be sufficient to constitute
>"publication"]; it might be considered to be a merger of idea and expression.
>
>In my view, the more serious problem is with trademark law. I checked the
>Open University website, and there is an argument that the Open University
>is using the Hollywood sign as a trademark; they have a series of slides
>using the title caption "Hollywood Science," with the "Hollywood" sign
>forming the first part of the title caption. The argument would be that
>the Chamber of Commerce has a registered trademark in the Hollywood sign
>(they do), and that the use of the sign creates a likelihood of confusion
>as to whether the University has been sponsored or endorsed by the Chamber
>of Commerce. In my view, this is a more plausible theory; but there are
>still a number of problems. The Open University pages are clearly marked,
>so there is no confusion as to source; the only possible confusion is to
>sponsorship or endorsement. But would someone looking at the website
>really think it was sponsored or endorsed by the Hollywood Chamber of
>Commerce? Doubtful. This is a nominative use, in which the sign is being
>used to refer to the U.S. movie industry ("Hollywood" in common parlance),
>and nominative uses are permitted under U.S. law under many
>circumstances. Also, in what class of goods is the Hollywood sign
>registered as a mark? I checked the USPTO website; it is registered for
>advertising, entertainment, casinos, jewelry, toiletries and cosmetics,
>clothing, photos and art prints, and clocks. It has not been registered
>for educational services, so this use might be too far removed to be
>confusing. [Although trademark dilution could still be argued, but this
>might be considered a non-commercial use of the mark.] Finally, I know
>that Hollywood Video uses the Hollywood sign as part of their registered
>trademark, and I seriously doubt that they are licensed by the Chamber of
>Commerce, so there is a waiver or abandonment argument as well.
>
>If the Hollywood Chamber of Commerce were to try to enforce their
>outrageous claim with a lawsuit, the Open University would have a lot of
>support in its defense from numerous U.S. intellectual property
>professors. So, I encourage the Open University to stand up to the
>Chamber of Commerce's overreaching claims and call their bluff.
>
>Prof. Tyler T. Ochoa
>High Technology Law Institute
>Santa Clara University School of Law
>500 El Camino Real
>Santa Clara, CA 95053
>(408) 554-2765
>(408) 554-4426 (fax)
>ttochoa[_at_]scu.edu
>
>
>
> >>> amalyah keshet <akeshet[_at_]netvision.net.il> 06/16/05 1:49 PM >>>
>Surely the Chamber of Commerce can claim copyright only in its own
>photograph of the sign?
>
>In this case, the photo was taken by an individual ("by one of our own
>staff"). Exactly like the zillions of photos of the sign taken by tourists
>over the years. Surely each holds copyright in their own photographs of
>the sign.
>
>The sign itself can't possibly be protected by copyright, can it? It's a
>sign. A word. A name. On a hillside. In a landscape.
>
>The mind boggles.
>
>Could it be protected by trademark?
>
>Amalyah Keshet
>
>
>At 17:05 15/06/2005, you wrote:
> >I'm hoping that US colleagues on the list may be able to help with advice
> >on a recent request to pay licensing fees for use of a photograph of the
> >Hollywood sign.
> >
> >My university is a distance teaching university in the UK and we host an
> >open web site on which we place educational and general interest content
> >for access by members of the public. One of the activities featured on
> >the site contains a photograph of the Hollywood sign, taken by one of our
> >own staff.
> >We've received a request to pay licensing fees for use of the photograph
> >from the Hollywood Chamber of Commerc, claiming that the sign itself is
> >protected by copyright.
> >
> >Is this the case, and does US legislation permit licensing of this
> >kind? Under UK copyright law works of art displayed openly in public
> >places may be photographed freely and a similar photograph in the UK could
> >be used without licence.
> >
> >Many thanks
> >
> >Richard McCracken
> >Head of Intellectual Property
> >The Open University
Received on Sat Jun 18 2005 - 01:05:16 GMT