How to find the angle between Mickey Mouse&#39;s ears as specified in an official trademark? The Walt Disney character Mickey Mouse's two ears sit on top of his head in such a way that the silhouette looks a bit like a water molecule, with the head as the oxygen atom and the two ears as the hydrogens. To take the comparison further, I wanted to find the original trademark filed by Disney, or subsequent filings and look to see if there is either an angle specified (and size ratio between the head and the ear) or at least an official artwork specimen which I could analyze. I've found the post Mickey’s Headed to the Public Domain! But Will He Go Quietly? which lists several filings, including TM Reg. 3750188, 0315056, 1152389, 3036883, 3006350, and 3598848 but likely some of these are not Mickey Mouse. I don't know how to check those. When I try google patents for example, I can't find a way to see trademarks, which of course is not a surprise. How can I find the angle between Mickey Mouse's ears as specified in an official trademark filing? If nothing helpful exists, what would be the next closest thing to it? Source Source I've also found Anticipate This!™ | Patent and Trademark Law Blog's 90th Anniversary of Mickey Mouse’s First Appearance on Steamboat Willie. though I'm not sure it offers a proper view for measuring the angle: Also this presentation, which does not seem overly helpful: Deadmau5 Trademark Infringement Case
US Patent and trademark office You can find the relevant documents on http://tsdr.uspto.gov/ , which are trivially searchable by the trademark registration numbers you provide. However, I'd doubt that "the angle between Mickey Mouses ears" is a term that will appear in any of these documents; a visual trademark will generally supply particular example drawings and a vague description, and it's up to the courts to decide if any particular usage is close enough to cause confusion or not, there isn't and can't be any formal criteria as in "this angle between ears is okay and that angle is not".
Neither law has precedence - manufacturers have to obey both. The FD&amp;C says that they don't need to list ingredients which are trade secrets; the CFR says they must. If they list the trade secrets they do not break either law. If they don't, they break the CFR. Conclusion: they must list the trade secret ingredients. If the FD&amp;C said it was forbidden to list trade secret ingredients, but the CFR required it, manufacturers would still have to obey both laws - which would mean they couldn't sell anything where one of the ingredients was a trade secret.
The claim seems novel, so I looked at several sources, including several recent cases where fair use has been upheld. Rozier In Easter Unlimited Inc v. Rozier, 18-CV-06637 (KAM) (E.D.N.Y. Sep. 27, 2021) the defendant arranged for creation of a cartoon image of himself wearing the copyrighted mask used in the movie Scream. This was found to be fair use, largely on the ground of the transformative nature of the use changing the purpose from evoking horror to a humorous reference to a horrifying movie. Rozier had originally considered using a representation of the hockey mask work by the character Jason in the Friday the 13th series of films. “Rozier and his management team decided that the clothing line would feature the name “Scary Terry, ” as well as a cartoon drawing of Rozier accompanied by a mask associated with a serial killer from popular horror.” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 42 (E.D.N.Y. Sep. 27, 2021) at page 42 It would seem that the Jason mask would have satisfied the purpose as well as the &quot;Scream&quot; mask. Nothing in the fair use analysis (section C of the opinion, starting at page 31) refereed to a need (to establish fair use) for the work appropriated to serve a legitimate purpose which could not be served without it or any similar concept. This simply was not part of the fair use analysis. Further the opinion states, at page 17: “Copyright infringement is a strict liability offense, meaning “intent or knowledge is not an element of infringement.” Fitzgerald Publ'g. Co. v. Baylor Publ'g. Co., 807 F.2d 1110, 1113 (2d Cir. 1986). ” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 17 (E.D.N.Y. Sep. 27, 2021) This seems to dispose of the de minims exception suggested by supercat's comments cited in the question. McGucken In McGucken v. Pub Ocean Ltd. 2:20-cv-01923-RGK-AS, 2021 U.S. Dist. LEXIS 153361 (C.D. Cal. July 27, 2021) The district court found fair use. The Copyright office's fair use index summarized the case, writing: Key Facts: Plaintiff Elliot McGucken photographs landscapes and seascapes, which he posts to his public Instagram account. Twelve of McGucken’s Instagram posts depict photographs he took of an ephemeral lake in Death Valley (the “Photographs”). On April 15, 2019, Defendant Pub Ocean Limited (“Pub Ocean”) published McGucken’s Photographs to five websites owned by Pub Ocean as part of an article written by a freelance writer titled “A Massive Lake Has Just Materialized in the Middle of One of the Hottest Places on Earth.” The article contained ten of the Photographs, with credit to McGucken and a link to his Instagram page, as well as several photos that were not McGucken’s and commentary on the conditions in Death Valley, the Sahara, and other natural phenomenon. McGucken brought an action for copyright infringement and moved for summary judgment, asserting Pub Ocean’s use did not constitute fair use. Issue: Whether including photographs posted on social media in a news article to illustrate the subject of the photograph is fair use when accompanied by commentary. Holding: The court concluded that Pub Ocean’s use of McGucken’s Photographs was fair use. The first factor, the purpose and character of the use, favored fair use because Pub Ocean’s use of the Photographs was transformative because the article included discussion of facts and commentary that provided context for the Photographs and included other photographs as well. The transformative nature of the use reduced the importance of the commercial purpose factor. The court held the second factor, the nature of the work, disfavored fair use as McGucken’s works, although previously published, are highly creative. The court found the third factor, the amount and substantiality of the work used, favored fair use. The court concluded that, despite displaying the “heart” of the Photographs, the article expressed ideas “beyond what Plaintiff expressed in his photographs,” rendering the amount of McGucken’s copyrighted images “insubstantial in context.” The fourth factor, the effect of the use upon the potential market for or value of the work, favored fair use because Pub Ocean’s transformative use “mut[ed] the degree of market substitution.” The court also noted that McGucken licensed the Photographs to other publications after Pub Ocean published its article, which indicated that Pub Ocean’s use did not usurp or destroy the market for the Photographs. Note that other photos of the same temporary lake would have fulfilled the legitimate purpose of news reporting, and there seems to have been no allegation that these particular images were essential to this purpose, but the court still found fair use. DMCA Subpoena to YouTube In In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.) United States District Court for the Southern District of New York January 18, 2022, Decided; January 18, 2022, Filed 7:18-mc-00268 (NSR) the district court considered a motion to quash a subpoena because a claimed infringement was alleged by the defendant to be fair use. In this case a person using a pseudonym created and posted to YouTube stop-action videos of characters represented by Lego constructions watching and reacting to substantial excerpts from a video published by the Watchtower Bible Society (publishing arm of the Jehovah's Witnesses). Watchtower claimed that this was copyright infringement, and obtained a subpoena to force YouTube to reveal the identity of the maker of the video. The unnamed maker sought to cancel (quash) the subpoena, claiming that the video made fair use of the videos published by Watchtower, so no infringement action could possibly succeed, and that Watchtower had no legitimate reason to obtain his identity, and wished only to harass and discredit him for having questioned its teachings. (The allegedly infringing video expresses disagreement with, and attempts to ridicule, the teachings expressed in the Watchtower video.) The district court found the allegedly infringing video to be fair use, and duly quashed the subpoena. Note that the unnamed maker could have used any of several other videos by Watchtower for a similar purpose, there was apparently noting unique to the particular video that was appropriated in part which was essential to the maker's use, nor did the court so much as mention any such unique aspect essential to the maker's purpose as being important to a finding of fair use. Excessive Use As this answer bv Accumulation correctly points out, when a defendant uses more of the sourc work than is required to fulfill the purpose of the use, that weighs against a finding of fair use. But this is not an absolute bar to fair use (or anything close to one), as the rule proposed by user supercat would be. In several cases I have read court opinions that say, in effect &quot;The defendant used more of the source work than was needed, adn that weighs against fair use, but the degree of transformativeness present outweighs that, so we find this to be a fair use.&quot; Thwe rule suggested by suoercat would not allow such findings. Excessive use leans against fair use, but is in no way dispositive. Conclusion I searched for any court case or law review paper which mentioned any such doctrine, and read through the fair use analysis in several recent court decisions in which fair use was found. I did not find any mention of the idea that fair use requires that the source work must be essential to the alleged infringer's legitimate purposes, and that those purposes could not be fulfilled by some other work, including perhaps a work available under a permissive license or in the public domain. I conclude that there is not, and never has been, any such requirement in US copyright law to successfully assert fair use.
Not copyright as such because that is about protecting a 'work' — a voice is not a 'work'. As the court said in one of the following examples, &quot;A voice is not copyrightable. The sounds are not 'fixed.'&quot; (You could copyright a roar or a yell — some kind of fixed arrangement of sound(s).) But some jurisdictions have recognised property rights in voices and/or that the voice is protected by the person's 'right of publicity' (the right to control the commercial exploitation of their identity, of which the voice is a part). For example: Bette Wins Ruling In ‘Sound-Alike’ Lawsuit - AP News June 23, 1988 SAN FRANCISCO (AP) _ A federal appeals court has reinstated a lawsuit filed by entertainer Bette Midler after an advertising agency allegedly tried to duplicate her voice and singing style in one of its ad campaigns. The 9th U.S. Circuit Court of Appeals unanimously ruled Wednesday that Midler could pursue her suit against the Ford Motor Co. and the Young &amp; Rubicam advertising agency. The court said certain personal attributes - such as a voice - can be considered property rights, protected by state law. ... U.S. District Judge Ferdinand Fernandez said Young &amp; Rubicam acted like ″the average thief″ but dismissed Midler’s suit, saying no law prohibits imitation of a singer’s voice. But the appeals court disagreed. &quot;A voice is as distinctive and personal as a face,″ the appeals court said. ″When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs.&quot; judgment in Midler v Ford Another case in the US is Waits v Frito-Lay Inc. The US Court of Appeal found that a radio commercial's imitation of the voice of Tom Waits constituted a civil tort, &quot;voice misappropriation&quot;. I'm not aware of any cases involving computer synthesis of voices.
I agree that you have a very strong copyright fair use case. Although the logo is creative and you're using the entire thing, your use is for a nonprofit educational purpose and does not affect the value of the work. The logo is also probably trademarked. But you aren't using the mark in commerce, so I don't think that will be a problem for you.
Speaking from a U.S. perspective (which may or may not generalize elsewhere), trademarks can be used by different companies when they operate in different industries. An answer on Avvo by Kurt Van Thomme captures the important question when using an existing trade name in a new industry: The question in these kinds of circumstances is often whether the goods or services offered by the two companies are sufficiently related such that a consumer would be likely to think a company providing the first product or service would be reasonably likely to provide the second product or service also. Kurt's answer includes an example where the name "Pioneer" is used by a seed company and an electronics company. The two products are unlikely to be provided by the same company, so there is low risk of consumer confusion. In my layman opinion, it seems unlikely that J.K Rowling or Warner Brothers would use the trade name Voldemort to market a software development tool (as it seems unlikely they'd market a software development tool at all, unlike a complete video game, which would be a more likely product), so you could legally use the name insofar as it is not likely to cause customer confusion. Note that you still might attract negative legal attention if the trademark holder is particularly litigious, so when I say "you could legally use the name" I mean that you could probably win a lawsuit (at whatever legal fee costs) if one were filed against you. However, some marks are regarded as "famous" or "well-known" in some jurisdictions. In that case, the mark is afforded much broader protection, and your ability to use it in a different industry is greatly diminished: Famous marks are those that enjoy a high degree of consumer recognition in a particular jurisdiction or in a specific field of commerce or industry. However, few trademarks enjoy the status of “fame.” Examples of marks held to be famous in certain jurisdictions are COCA-COLA, KODAK, WIMBLEDON and VIAGRA. For example, you could not start a business selling automobiles under the brand name "Coca-Cola" even though it is tremendously unlikely that the Coca-Cola Company would branch out into selling cars. The mark's status as "famous" would still allow the Cola-Cola Company to succeed in stopping you from using that mark in commerce, even in a vastly different industry. If the trademark holder of the name Voldemort succeeded in persuading a court that the mark met the jurisdiction's standard for a famous mark, then you could not use the name even for your software development tool. Note also that because trademark is intended to reduce confusion over the source of a good or service, trademark holders can lose their trademark by failing to defend it from confusing uses. Therefore, some trademark holders aggressively pursue even borderline cases to ensure they don't endanger their trademark.
A figurine, or other artwork, that is clearly based on the published images, or on the published description, of a fictional character in a copyrighted work would be a derivative work. To publish, display, sell, or distribute such a work without permission would be copyright infringement, and the copyright holder could sue for damages. Whether something is a derivative work is a question of fact, and the details can matter. In general, the more vague and generic the fictional description, and the more original elements not derived from the fiction are included in the work, the less likely the new work is to be held to be derivative. But any significant element clearly taken from the previous work may be enough to make it derivative.
From the patent angle, you will need to make sure that you are not infringing on a patented swing. That should be pretty easy at present because golfers are not patenting their swings. What Mowzer says about public disclosure probably has something to do with this. However, at least one golfer patented a swing: I would be more concerned with the right of publicity of the golfers whose swings you are selling. You can't use someone's name for commercial advantage without their permission. (I will leave this thought for another day: Can analysis of a golfer's swing, without reference to their name, be appropriation of their identity if the swing is so unique?) I am just going to rip this straight out of C.B.C. Distribution v. Major League Baseball, 443 F.Supp.2d 1077 (E.D. Mo., 2006), cleaning up some formatting and removing some citations. This is a good cite because it discusses Supreme Court jurisprudence and the New York origins of the right of publicity doctrine. The right of publicity is recognized by statute and/or common law in many states. J. Thomas McCarthy, The Right of Publicity and Privacy § 63 (2d ed.2005). A fairly recent concept, according to the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915, 929 (6th Cir.2003), this right "was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd Cir.1953), where the Second Circuit held that New York's common law protected a baseball player's right in the publicity value of his photograph, and, in the process, coined the phrase `right of publicity' as the name of this right." Subsequently, in Zacchini v. Broadcasting Company, 433 U.S. 562 (1977), 433 U.S. at 573, where a performer in a "human cannonball" act sought to recover damages from a television broadcast of his entire performance, the Supreme Court recognized that the right of publicity protects the proprietary interest of an individual to "reap the reward of his endeavors." The right of publicity is described in Section 46 of the Restatement (Third) of Unfair Competition (2005), Appropriation of the Commercial Value of a Person's Identity: The Right of Publicity. This Restatement provision states that "[o]ne who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability...." Relying on the Restatement, the Missouri Supreme Court held in TCI, 110 S.W.3d at 369, that "the elements of a right of publicity action include: (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage." See also Gionfriddo, 94 Cal.App.4th at 409, 114 Cal. Rptr.2d 307 ("The elements of the [tort of the right of publicity], at common law, are: '(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.'") To prove a violation of one's right of publicity a plaintiff must establish that the defendant commercially exploited the plaintiff's identity without the plaintiff's consent to obtain a commercial advantage. Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983).