Wednesday, May 02, 2007


Mirage Studios, owner of the Teenage Mutant Ninja Turtles properties, karate-chops Pittsburgh video store for trademark infringement and dilution over the store's use of the TMNT characters on the storefront and in advertising. The 20-year-old store owner's defense, part one: "Under the First Amendment, I have the right to paint whatever I want, as long as I don't make money off of it." And part two: "He also said that he believed trademark law allowed him to use some version of the characters if they were 15 percent different from the originals."

Someday I'll have to make a list of the various percentage-of-difference arguments I've heard over the years. This is the first time I've heard it in the trademark context, but it comes up often when I give talks about copyright law to visual artists. Most recently I had one person insist that a seven percent change in a photograph was enough to avoid infringement. How do you calculate a seven percent change? First you change the vertical size, that's two percent. Then you change the horizontal size, that's another two. Then you change the color, and there's your remaining three. I gave him my card.



At 12:28 PM, Blogger Olli S. Baker said...

Have you read Jessica Litman's Digital Copyright? She argues that the copyright laws are counter-intuitive and incomprehensible to much of the general public, and advocates scrapping much of the present regime for one where only commerical uses of a work would incur liability for infringement. I assume that by Litman's standards this guy's use is commercial, so his arguments seem to be less indicative of the need for a stronger public domain than of his just being wrong in this instance. But his assertion that he can paint what he wants, as long as he doesn't make money, is interesting in light of Litman's argument that the public tends to think about copyright, for better or for worse, in ways that copyright lawyers find patently (no pun intended there) ridiculous.


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