Damned If You Do
Posted by Derica Lorraine at 5/13/2008 3:35 AM and is filed under uncategorized 
A knitter has been told to
stop producing patterns of Dr. Who show characters by the owner of the show's copyright.
This does appear to be a little aggressive, since in all actuality it would be free advertising for the show. Let me explain the development of copyright law.
Do you remember Aspirin? You probably know it now as Bayer Aspirin. They had cornered the market with a great product and became a household word. Got a headache? Take an aspirin.
What happened was that some headache tablet manufacturers began to call their products aspirin so as to confuse the public about what they were buying. So Bayer took them to court to get them to cease and desist.
The court decided in favor of the criminals. The court said that since Bayer did not sue the pants off everyone in sight who used the word "aspirin" such as novelists that Bayer had lost the right to the exclusive use of the word "aspirin." And furthermore, that now, not even Bayer could use the word Aspirin on its own product. That is why it is now Bayer Aspirin.
This decision has led copyright holders to actively pursue (hire more lawyers) to hunt down and prosecute, if need be, any and all copyright infringers. Novelists cannot use the word Kleenex when a heroine dabs her tears.
If all we had to deal with were the facts, the reporter is right in this article that the knitters should actually be encouraged. But something that the show's lawyers know that this reporter didn't is that if you own a copyright, you must show the court that you have actively pursued protecting it, if you want to win in court when someone actually infringes on a copyright.
The copyright holder is damned by this reporter and his readers for being forced by the courts to protect its copyright (which was the court's job) and the copyright holder is damned if any use of the copyright is not actively litigated against because then the copyright will be seen as free-market property.
This does appear to be a little aggressive, since in all actuality it would be free advertising for the show. Let me explain the development of copyright law.
Do you remember Aspirin? You probably know it now as Bayer Aspirin. They had cornered the market with a great product and became a household word. Got a headache? Take an aspirin.
What happened was that some headache tablet manufacturers began to call their products aspirin so as to confuse the public about what they were buying. So Bayer took them to court to get them to cease and desist.
The court decided in favor of the criminals. The court said that since Bayer did not sue the pants off everyone in sight who used the word "aspirin" such as novelists that Bayer had lost the right to the exclusive use of the word "aspirin." And furthermore, that now, not even Bayer could use the word Aspirin on its own product. That is why it is now Bayer Aspirin.
This decision has led copyright holders to actively pursue (hire more lawyers) to hunt down and prosecute, if need be, any and all copyright infringers. Novelists cannot use the word Kleenex when a heroine dabs her tears.
If all we had to deal with were the facts, the reporter is right in this article that the knitters should actually be encouraged. But something that the show's lawyers know that this reporter didn't is that if you own a copyright, you must show the court that you have actively pursued protecting it, if you want to win in court when someone actually infringes on a copyright.
The copyright holder is damned by this reporter and his readers for being forced by the courts to protect its copyright (which was the court's job) and the copyright holder is damned if any use of the copyright is not actively litigated against because then the copyright will be seen as free-market property.
Hi there Derica,
Thanks for the link and the discussion, but as the "reporter" who you claim doesn't know things, I'd like to offer a few corrections to your post, which misstates a number of things.
First, in the article above you continually refer to copyrights, but you mean trademarks. Copyrights and trademarks are two very different things, and you mix them up throughout this post.
If you want a primer on the difference, please look here:
http://www.techdirt.com/articles/20080228/003450379.shtml
Second, since you actually mean trademarks rather than copyrights, I'll respond to the claim that you have to enforce it. This is misleading and not entirely correct. You are correct that a trademark holder needs to enforce the mark, but NOT against anyone who uses it. It only needs to be enforced against those who are using it in a way that is likely to cause confusion in the marketplace.
In a situation such as this, where there is unlikely to be any confusion that the creator of the knitting patterns was actually the BBC, there is not a need to enforce it.
As for copyrights (which aren't what's being discussed here anyway), there is no requirement to enforce.
So, I'd appreciate an update on the post, suggesting that maybe I'm not as clueless as you suggest.
Thanks!
Mike
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