Re: What is immoral?

On Thu, 16 Feb 1995, Robert Parker x593-8411 wrote:
>
> As far as I understand, one can not obtain copyright, trademark, or
> design patent for the design that is "obscene", or "immoral". Where
> are these tests defined.

I don't think it's the same for all species of IP.

For copyright, you obtain the copyright as soon as the work is fixed in a tangible medium of expression, even if it is obscene. I'm not aware of any recent (say, post-1978) cases that deny copyright due to content. I think that there are some older ones that do. A more recent case holding the opposite is Mitchell Bros. v. Cinema Adult Theatre, 604 F.2d 852 (5th Cir. 1979). I believe, though, that there was an opinion of the Attorney General saying that the Copyright Office could deny _registration_ to such a copyright. I think this was under Nixon.

For trademark, the issue is whether the mark is immoral, deceptive, or scandalous. This is in section 2(a) of the Lanham Act (codified as 15 U.S.C. 1052(a). If you look at the annotations for that section, you should find some pointers to cases that provide the specific tests.

For patents (presumably uncluding design patents), there is some older case law that a patent can be denied if the subject matter is illegal, immoral, or contrary to public policy. These are typically addressed as part of the utility requirement: if the invention is immoral, it isn't "useful." This doctrine was formerly used to deny patents on things like gambling devices, but I don't think it has much strength any longer.

--
Terry Carroll        |   "Clearly, this invention provides the world's
Santa Clara, CA      |   first weapons simulator for use by motorists."
carrollt[_at_]netcom.com  |     - U.S. Patent No. 5,314,371 (May 24, 1994)