From: Sandy Thatcher <[log in to unmask]>
Date: Tue, 28 Aug 2012 18:24:34 -0500

Remember, also, that Xerox gave up the fight to protect the use of
"xerox" as a verb as a synonym for "photocopy." I suspect the same has
been happening with "Google."

Sandy Thatcher


> From: Sean Andrews <[log in to unmask]>
> Date: Mon, 27 Aug 2012 22:09:56 -0500
>
> On Mon, Aug 27, 2012 at 4:53 PM, LIBLICENSE <[log in to unmask]> wrote:
>
>>  From: Jim O'Donnell <[log in to unmask]>
>>  Date: Mon, 27 Aug 2012 15:49:36 -0400
>>
>>  Seems to me that's a specimen of a rightsholder who doesn't know when it's in its own interest to acknowledge fair use and let a small dollar revenue stream dry up.  Wouldn't it be a nicer world if universities and publishers and Disneys made a *point* of their own admiration for and respect for fair use as a principle?  If they convinced the general public that they get it about where a reasonable boundary lies between what we can do for free and when we should start paying licensing fees?
>
> SA: Normally I'd agree with you, but trademark is a funny right. In
> most cases, the rightsholder MUST sue in order to prove it is
> protecting its right when it comes time to renew. You have to prove
> you are protecting it because, in the end, the goal of trademark is to
> not only ensure that rightholders are paid for goods which receive
> additional value from their mark, but also to hold the rightsholder
> responsible for things produced in its name. And I'm not sure if this
> particular use necessarily qualifies as "fair use" in terms of a
> trademark, but certainly it is pretty common practice around cultural
> institutions like sport. I think Disney and others are in a different
> ballpark since they are clearly less forgiving than they could be -
> particularly when most of its back catalog is blatant plagiarism of
> our culture.
>
>>  I cannot think offhand and would welcome examples of rightsholders who have done a good job of that kind of marketing.  I'll pay you a rights fee a *lot* more happily if I feel in my gut that they're more or less on the same page with me about where that boundary lies.
>
> SA:  Most trademark holders are pretty ruthless. Copyright is
> certainly more fluid and your sentiment seems widely held - though I
> can't think of anyone who isn't a stickler on some level. Many bands
> allow bootleg tapes - cf. the Grateful Dead collection in the Internet
> Archive
>
> http://archive.org/details/GratefulDead
>
> and many a video remake on Youtube seems to suggest that it is a
> pretty accepted practice by most rightsholders (though there are major
> exceptions.)
>
> I think the best example of what you are talking about is Lego. I
> can't find the history, but my sense is that fans of movies began
> using legos to create stop animation movies because they were an easy
> medium to manipulate.  These were explicitly called Lego Star Wars or
> Lego Superman or whatever film it was being remade with Legos (the
> first one I saw was Star Wars, not sure when it really began.)  Here
> is a sample of some more recent ones.
>
> http://mashable.com/2010/04/24/best-lego-movies-youtube/
>
> And here is the Internet Archive page cataloging all the works of
> "Brickfilms" http://archive.org/details/brick_films
>
> So far as I know, they never sued people for using this trademark, and
> since then have gone on to create not only playsets but videogames and
> more professionally produced films, or, at the very least, had them
> licensed. In other words, by allowing this fan activity, they actually
> opened up an entirely new market for themselves. Then again, I've not
> seen a report about how this activity began: maybe it was more
> ordinarily litigious.
>
> Not sure if that's what you had in mind but...
>
> --
> Sean Johnson Andrews
> [log in to unmask]
> Assistant Professor of Cultural Studies
> Columbia College, Chicago
> 2011-2013 ACLS Public Fellow
> Program Officer
> The National Institute for Technology in Liberal Education