The Bloomberg BNA Intellectual Property Blog is the home of the "Do You Copy?" podcast and offers links to selected articles by the BNA IP team, which is accessible to both subscribers and non-subscribers as well as commentary and analysis exclusive to this blog.
Thursday, October 18, 2012
by Rebecca E. Hoffman
I have a friend who is a bit of a pedant. That is, he knows everything about everything, and he'd like you to know how much he knows about everything. If you get something wrong, he'll let you know about it.
When I was in law school, I got into a conversation with this friend and the subject of Xerox® came up. Xerox Corporation is always imploring the public not to use the term "xerox" in everyday speech, such as "I'm going to go make a xerox of this" or "I've been xeroxing all day and my fingers are full of paper cuts." (In fact, as I typed that last sentence, my word processor autocorrected my lower case "xerox" to upper case.) Of course, Xerox Corp. is trying to hang on to its trademark and make sure it doesn't become a household word, which could "genericize " it.
My friend insisted that this had already happened; that Xerox had lost its trademark registration because "xerox" was now a generic term. I fought him on that point, because I had only just recently learned about this in my trademark law class, taught by none other than the esteemed Shira Perlmutter, who is currently serving as chief policy officer and director for international affairs for the U.S. Patent and Trademark Office. I knew that, for once, I knew more about something than my friend did. He insisted that his brother, who is "a patent lawyer," told him this, and would not concede, but I knew I was right.
It's happening again: I can claim today to know a bit more than some know-it-alls. Fellow Bloomberg BNA Intellectual Property Blog contributor Anandashankar Mazumdar showed me a post on Cracked.com called "5 Everyday Things You Won't Believe Are Copyrighted." What follows, oddly, is a list that includes three items that enjoy trademark protection, and two inventions that are patented.
Well, Ananda and I, and many of you, know something about the differences between copyright, trademark, and patent, and have earned the right to be a little pedantic. I hate to, um, crack on Cracked.com, because it's a funny site and even this post is entertaining. But, regardless of how much people might want it to be, the word "copyright" is not an umbrella term that covers all the varieties of intellectual property protection. "Copyright laws" are just copyright laws; patent and trademark laws are not covered under a general category called "copyright."
Apparently, the authors don't care about the distinctions, or they think their audience doesn't. What makes this article funny is that, ostensibly, the things they say are protected, like the term "Super Bowl," really are. Cracked.com reports that "each year, [the NFL's] lawyers send out thousands of preemptive letters to advertisers, media outlets and even small businesses in the host city reminding them of what can and cannot be said, which are usually followed by at least a further 100 cease-and-desist letters for those who didn't get the message the first time."
The linked article says that the NFL fights hard to bar uses of "Super Bowl" in any unauthorized commercial context. If Cracked were making this up, the article would have little value as an exposé of crazy things people and companies do to protect their rights. So I have a hard time understanding why the authors wouldn't also want to get the legal terms correct. More to the point, this article is written to inform the general public, and it is likely that many readers will assume Cracked.com knows what "copyright" means and actually be misinformed.
If you look at "#4" out of the five, its title is "There's a Copyright on Your DNA." I started imagining that someone had taken some else's genetic code and translated it into music somehow, like a Trinity College professor did with MRI brain scans (go listen to that…it's beautiful and creepy at the same time, just like you'd expect). The resulting genotype musical composition and sound recording could be protected by copyright, but perhaps the actual owner of the genes used in the creation could proclaim authorship, and there would be some sort of copyright dispute. However, once again, the Cracked.com authors didn't mean "copyright"; they were talking about Myriad Genetics's patent on the BRCA1 and BRCA2 genes.
With over 1000 comments to the Cracked article, I figured someone had pointed out the mislabeling. It took me a while to find, but commenter kraagenskul wrote "Wow, not a single one of these has anything to do with copyright."
Another commenter replied: "Trademark and Patent aren't exactly a farcry..." Perhaps not (<pedantry>what's a "farcry"?</pedantry>). The second reply reads : "LOL, yeah patents, trademarks, copyright, all the same thing, right? Perhaps putting in all the BS that exists about copyright would be too long for a Cracked article... " Hmmm.
Cracked.com is careful to include a copyright notice at the bottom of each page, but there is also a trademark notice for "Cracked," "Cracked.com," and the Cracked logo. Someone over there appears to know the difference, and I'd be willing to bet that person doesn't xerox.
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