HBO takedown on 13-year-old girl's painting because it used 'Winter is coming'
theregister.co.uk
theregister.co.uk
The recent Lenz decision by the Supreme Court made it a lot more challenging for companies to just blanket-issue DMCA requests because it forces them to take fair use considerations in mind -- that would handle any copyright claim made against the phrase. Wrt trademark, there is absolutely no argument that could sustain the notion that somehow this girl's painting is confusing others as to the fact that it may be official GoT material.
Sadly, this is an unfortunate collective action problem. I understand that it is too much of a hassle and could be too costly for that single family to try to fight this on their own, so in 99.9% of these cases these companies just win by default. But a huge reason why the resort to those strategies is the fact that they count on people not taking them to task in the first place. I have no good answer for this, though.
Also, I fail to see the likely misidentification of this merchandise in the market, especially considering it wasn't for offer in the market.
What if some show took something like 'Her life is in your hands' and made it so popular that most people assume you're referencing that show when you do? Would they be able to do cease and desists because of it?
By the way, add 'dude' to the above phrase and it's already a popular Big Lebowski quote.
1. This was not HBO, but one of their many, often hyperactive IP firms.
2. IP firms are hyperactive because the law tells them if they aren't, they lose credibility in the eyes of the court in future cases.
3. The content, clearly GoT inspired, was likely posted in places that have agreements jeopardizing the ownership of said content and, yes i am stretching, copyright and trademark.
Is it ham fisted? Absolutely, I opened with that. But is it expected? Is this bad journalism? Absolutely it is.
I don't think the distinction between the company and its employees/contractors is relevant here. If the employee/contractor consistently went against the company's wishes, they wouldn't be an employee/contractor.
Really ? You see a GoT theme in that picture ? I don't.
You're not just stretching it, you're confusing the two. The law doesn't say anything about the need to protect trademark, only copyright. Additionally, there is nothing there to indicate that the artwork ("content" as you called it) has any inspiration from GoT. It's not based on a character from the show or the book and it doesn't depict an event or scene from either.
This is DMCA abuse.
HBO probably would be within their rights to trademark "winter is coming" but it's still DMCA abuse because the DMCA isn't for trademarks and this appears to be a legit use.
The version I see when I click the link has that information at the bottom of the article.
And if a company runs around trademarking commonly-used phrases, they're still assholes for enforcing it should they choose to hide behind legalities or not. In fact, I would argue that the only reason the sentence even exists in the show is because...it's a commonly-used sentence.
I'm no IP lawyer but you don't need to vigorously defend trademarks (https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...).
It's virtual impossible to track all infrigements to begin with. If you read the rules regarding trademark abandonments you will see that it's certainly not that black and white as "you snooze, you loose".
They do, to some extent. But there are these things known as "discretion, "general decency" and "common sense" -- which should clearly take precedence in situations like these.