DAN MARGULIS APPLIED COLOR THEORY

Copyrights, Trademarks, and Obviousness

A discussion of three cases testing when the execution of a concept is original enough to merit intellectual property protection begins with two graphics that each feature two iconic images of London: first, a red double-decker bus, and second, a background of Big Ben and the Houses of Parliament. In both graphics, the bus is the only red object, in fact it is the only colored one, because the entire background has been converted to grayscale. In all other respects, the pictures are dissimilar: the buses are of different sizes and appear in different locations and at different angles; the perspective of the backgrounds are diverse, and so on. The question is whether one nevertheless infringes the other.

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From: Kevin Stecyk

Date: January 25, 2012 2:35:52 PM EST

Subject: [colortheory] Photography & Copyrights

For those that are interested in photography and copyright issues, here's an interesting article:

Photographers face copyright threat after shock ruling (update3)

http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html

Be sure to click on one of the bottom links that calls up both photographs that were manipulated using Photoshop.

What say you?

Kevin H. Stecyk

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From: Henry Davis

Date: January 25, 2012 6:10:31 PM EST

Subject: Re: [colortheory] Photography & Copyrights

The two photos appear dissimilar to me. Judges are, after all,

bureaucrats of a sort and this kind of thing is job security for the

legal profession.

You may want to snip out that last part.

A musical composition that gets close enough to be questionable is a

creation that has no physical basis (unless you count scores or

snatches of pieces of recordings). Photography of scenes that aren't

staged may be similar but it's arguably more coincidental than a copied.

To me, it would be more difficult to declare infringement for a

photograph that wasn't staged, but then, I'm not a judge. Even for

staged photos, there would need to be enough similarity that

infringement was beyond question.

Sorry to bring music into it but it struck me at the moment.

Henry

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From: James Gray

Date: January 25, 2012 6:40:13 PM EST

Subject: Re: [colortheory] Photography & Copyrights

I have no expertise related to copyright, however, I find it almost mind

boggling that these two images are considered enough alike to be considered

a copyright infringement. I read through the judgment. The finding seems

to be fairly narrow however.

James Gray

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From: Arye Rubinstein

Date: January 25, 2012 7:22:53 PM EST

Subject: Re: [colortheory] Photography & Copyrights

Here in the U.S. if you start with a pre-existing copyrighted image, photo or

other, and that can be proven by fact or argument, than use it as reference to

create another image whether a photo or illustration you owe the original art's

U.S. courts. This has occurred many times where a stock photo or another work

was used as reference and either a new photo or an illustration was created and

it only needs to be similar to the original. The point is that the original was

referenced in order to create a new image. Licensing for artists reference has

been a standard practice for a long time, whether from a stock company or

individual artist.

And yes it occurs in music quite a bit AKA 'sampling' and has also been in the

courts and held up as a copyright violation.

Sapere Aude,

Arye P. Rubenstein

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From: Dan Margulis

Date: January 26, 2012 11:05:39 AM EST

Subject: Re: [colortheory] Photography & Copyrights

Arye writes,

Here in the U.S. if you start with a pre-existing copyrighted image, photo or

other, and that can be proven by fact or argument, than use it as reference to

create another image whether a photo or illustration you owe the original art's

U.S. courts.

Would you happen to be able to cite a case that illustrates this long-standing occurrence? That is, where a U.S. court has held that a certain photograph infringes on the copyright of a similar photograph, although no literal copying was done? I ask this because I am under the impression that there has never been such a case in U.S. courts.

The leading case in the field is Ets-Hokin v. Skyy Spirits Inc., 323 F.3d 764 (9th Circuit 2003). The plaintiff photographer had taken several pictures on spec for advertising a brand of vodka, hoping to solicit business from the manufacturer. The defendant vodka manufacturer liked the pictures but not what the photographer was asking for rights to them. They hired another photographer, to whom they showed the first photographer's pictures, implying that he should use them as reference in preparing his work. Although the second photographer did not scan the first one's work or otherwise literally copy it, his pictures were highly similar and clearly intended to evoke the first one's work.

The appeals court unanimously held that this was no copyright infringement. It said that the standard in such cases is that the purportedly infringing photograph must be not just highly similar, but "virtually identical" to the original.

Dan Margulis

P.S. There actually was a case where a court found copyright infringement when a *sculptor* created a work that was based on a photograph. That case, however, is no longer considered settled law because a subsequent Supreme Court ruling undercut its main line of reasoning.

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From: Evans, Rebecca

Date: January 26, 2012 10:17:20 AM EST

Subject: Re: [colortheory] Photography & Copyrights

Here are a couple of links to photos of red London buses on grayscale backgrounds.

http://www.europosters.eu/buses/

http://www.photo4me.com/canvasprints/london-bus

Either photographer could have been the first person to create that effect but it has been widely imitated.

Rebecca

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From: Dan Margulis

Date: January 26, 2012 11:05:48 AM EST

Subject: Re: [colortheory] Photography & Copyrights

Kevin Stecyk writes:

Photographers face copyright threat after shock ruling (update3)

http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html

Be sure to click on one of the bottom links that calls up both photographs that were manipulated using Photoshop.

What say you?

Kevin,

My limited understanding of UK intellectual property law suggests that it was a rogue decision. However, for our purposes most of us can ignore it on the grounds that freedom-of-expression laws in countries that spell color with an extra "u" are stricter than in the U.S.

Libel example: If you feel that you have been defamed in print, and sue,

UK: the burden is on the author to prove the truth of what he wrote, and anyone, however innocently, participating in the act (such as the newsstand that sold the product) can also be held accountable for the damage.

US: the burden is on *you* to prove with "convincing clarity" that the charge is false, and as a general rule, to also prove that the author entertained serious doubts about its veracity before publishing. No other party can be held liable unless they were also somehow at fault.

UK: Unless there is an indication of an agreement to the contrary, the copyright belongs to the commissioner, not you.

US: Unless there is a *written* agreement to the contrary, and the written agreement is dated before the photograph was taken, the copyright belongs to you.

In this situation the photographer wants custody of an idea--the idea of any portrayal of a red bus against any black and white backdrop of London landmarks. He can only claim that the *idea* is infringed, because obviously the two photographs are grossly dissimilar. I don't know about the UK, but US law doesn't permit the copyright of ideas, only the specific expression of them. The idea of placing a colored object for emphasis in an otherwise black and white image is very old. The idea of using specifically bright red as the color, the photographer acknowledges that he borrowed from the film Schindler's List.

Dan Margulis

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From: Nick Dunmur

Date: January 26, 2012 2:35:26 PM EST

Subject: Re: [colortheory] Photography & Copyrights

Hi all

Just to be clear, UK law since 1988 places copyright automatically in the hands of the photographer NOT the commissioner.

The exception being if the photographer is an employee (as opposed to being self-employed), in which case copyright belongs to the company the photographer is employed by.

In neither case though does copyright belong by default to the commissioner.

Kind regards

Nick (UK)

dUNMUR | photographer

Member & non-executive director of the Association of Photographers

Member & co-admin of Pro Imaging

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From: Kevin Stecyk

Date: January 26, 2012 11:48:29 PM EST

Subject: Re: [colortheory] Photography & Copyrights

Dan,

I hope you're correct that this ruling is a rogue decision.

Yes, I am familiar that Commonwealth countries generally have a more burdensome defamation laws. I seem to recall that some authors revise their books that are shipped to the UK to avoid libel issues. And others forum shop to have their cases heard where it is most advantageous, often in the UK.

With the Internet, life has become more complicated. I recall a situation where Dow Jones (Barron's Magazine) wrote a not-so-complimentary article about a person (Gutnick) living in Australia. The magazine was created primarily for an American audience, using American talent, paper, processes, and machinery including servers. Most of the Barron's magazines were delivered to Americans and some to Canada. Gutnick wanted to sue Dow Jones in Australia. Dow Jones attemtped to persuade the courts that because everything was "U.S." and that only five copies of the magazine were sent to Australia, the case should be heard in the United States. Dow Jones lost. As I recall, the thrust of the Australia court's decision to hear the case in Australia was because that is where Gutnick's friends, relatives and associates lived. That is where he was allegedly harmed.

If you search for "Dow Jones Gutnick" (w/o the quotes), you'll find lots of articles on this topic.

Here's a Wikipedia article: http://en.wikipedia.org/wiki/Dow_Jones_%26_Co._Inc._v_Gutnick

This is a long winded way of saying laws in foreign countries can sometimes affect us. How that might apply to something like this photography example, I have no clue.

Switching topic to photographers in Canada and copyrights, I believe we're in the process of having the photographer as the default copyright holder. Please see:

Balanced Copyright: http://balancedcopyright.gc.ca/eic/site/crp-prda.nsf/eng/home

http://balancedcopyright.gc.ca/eic/site/crp-prda.nsf/eng/rp01189.html

*Align photographers with other creators:* The Bill

grants photographers the same authorship rights as other creators.

Currently, photographers are not considered authors of commissioned

works.

My weak understanding is that Copyright Modernization Act is still working its way through the python.

Again, I hope you're correct that this court decision is a rogue decision. Thank you for your comment.

Kevin

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From: David Kessler

Date: January 26, 2012 8:41:06 PM EST

Subject: Re: [colortheory] Photography & Copyrights

I can't speak about image copyrights, but I was working at Lotus when the "look and feel" copyright infringement cases were going on around the user interface -- around 1987. As an engineer, I was pretty surprised at the lengths that the courts went to to "protect" even the most tenuous aspects of the user interface. Between the look and feel copyright issues and the software patents that were being issued for various algorithms, I thought that it could make software development a real minefield for programmers and especially for small companies.

At that time, there were also some cases being filed about companies making knock-off Intel CPU chips. The questions were primarily about whether "clean room" design (locking up the engineers in a room and giving them the machine's desired instruction set but not allowing them any access to any Intel documentation) was enough to protect against copyright and patent infringement.

A few years ago, I was contacted by a lawyer who was asking about a company I co-founded in 1982. He wanted to know about the technology we created because they were trying to draw a line (or perhaps they were trying to break the line, I don't remember) of what we did in our user interface to the Amazon-like shopping cart. It seemed like a pretty tenuous path to me, but hey, what do I know. I was just one of the guys who thought up the interface -- which was nothing like a shopping cart but did use dynamic and changeable soft keyboards.

In any case, at the time I was at Lotus, I spoke to one of the lawyers about some of the issues. And this is where the copyright discussion gets close to the issues around image copyrights. One of the things we talked about was the notion of remaking a movie. Would it be ok to have a tape of the movie and to use it to duplicate the script by watching it as long as the original movie script was not available. My recollection of this 25 year ago conversation was that he said that there had been a case about that and that the court ruled that it was ok to take a tape (probably VCR not Betamax) and recreate the script because that would be analogous to clean room engineering.

I think that the courts have been inconsistent over the years about how and how broadly they have interpreted issues of copyright infringement. Along those lines, this morning on the news, I heard that some fashion designer is trying, under trademark law, to protect the color red that they use on the soles of their shoes.

David Kessler

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From: Kevin Stecyk

Date: January 26, 2012 11:04:02 PM EST

Subject: Re: [colortheory] Photography & Copyrights

David Kessler wrote on Thursday, January 26, 2012 6:41 PM

Regarding red sole shoes: http://online.wsj.com/article/SB10001424052970203718504577181360914355808.html (You might need a subscription to access the article. You can try Googling "The Red-Sole Case Can the color red be trademarked?" You might be able to enter WSJ from Google.)

Kevin H. Stecyk

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From: Dan Margulis

Date: January 27, 2012 7:33:41 PM EST

Subject: Re: [colortheory] Photography & Copyrights

Nick Dunmur wrote:

Just to be clear, UK law since 1988 places copyright automatically in the hands of the photographer NOT the commissioner.

The exception being if the photographer is an employee (as opposed to being self-employed), in which case copyright belongs to the company the photographer is employed by.

Thanks for the correction. I apologize for lack of familiarity with current UK law; I think you are indicating that at one time the law was the other way. If I understand Kevin correctly it is still so in Canada.

Still, in examining the UK Copyright Service's rules it does seem to me that US rules are more favorable to the photographer in that certain items are interpreted more strictly. The UK rules, with my comments:

Who owns the copyright on photographs?

Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:

* If the photographer is an employee of the company the photos are taken for...

US revision--if he is a FULL-TIME employee of the company, and both company and employee expect that the full-time status will continue indefinitely.

...or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer...

US revision--if he is an employee whose customary job description is understood by both to include taking photographs of the type in question, and if he is clearly acting on the company's behalf and being paid by the company at the time the photographs are taken.

* If there is an agreement that assigns copyright to another party.

US revision--if there is a WRITTEN agreement to that effect, executed BEFORE the photographs were taken.

Dan Margulis

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The look-and-feel case: Lotus v. Borland

From: Dan Margulis

Date: January 28, 2012 7:36:57 PM EST

Subject: Re: [colortheory] Photography & Copyrights

David Kessler writes,

The question was resolved without being resolved, due to a quirk in our legal system. The case did involve Lotus, which at that time had a near-monopoly on spreadsheet software. A competitor, Borland, did the whole clean-room routine and came up with software that looked, felt, and behaved exactly like Lotus 1-2-3, so that a user could migrate from one to the other with no hassle at all.

Naturally Lotus sued for copyright infringement. The case was assigned to a very distinguished judge, the late Robert Keeton. He ruled for Lotus. His reasoning was that Borland had the right to copy certain things that were inevitable in any software program but that in many other areas choices could be made that would in no way hurt functionality. For example, he suggested, instead of "Quit", Borland might have chosen "Exit" or "Halt Program".

Naturally Borland appealed. A three-judge panel unanimously overturned the Keeton decision and ruled that Borland was within its rights to make something that looked and felt like the Lotus product as long as it was a clean-room kind of deal.

Naturally Lotus appealed, to the only place that it could, namely the Supreme Court, which decided to take the case. And then came the quirk. The case was argued, but one justice recused himself, leaving only eight to decide the case. They split 4-4. When that occurs, the fact that it was a 4-4 split is all that they announce. We don't get to know who voted for who, or why. The case is over; the appeals court ruling stands and Borland wins.

The media played this as a definitive statement that copying look and feel is OK, as Borland celebrated its great victory. But of course it was just the opposite. Anybody who was thinking of, say, creating a shareware program that looks and functions exactly like Photoshop would have cancelled their plans immediately. Because no one knows how the ninth justice would have voted. And the next time the Supreme Court took a similar case, whatever perceived conflict caused him to recuse himself from Lotus v. Borland would presumably no longer exist.

So that's where we stand. The leading case in the field says emphatically that copying look and feel is OK--but I wouldn't do it if I were you.

I don't think that there has been such a case and don't believe that there's any analogy. Copyright is intended to protect creative expression. The case above involved the user interface only, since it was conceded that Borland did not copy Lotus's code. The Supreme Court has ruled that a telephone book does not contain enough creative expression for a copyright to be enforceable. Those judges who sided with Borland felt that a UI was more like a telephone book than a novel or a movie script, so they declined to protect Lotus.

If you take notes on a taped movie and create a new script from it, it wouldn't matter that the original script was different, any more than it mattered to the judges favoring Lotus that Borland's code was different. The question would be, if your new script, like the original, calls for Curly to enter the restaurant from stage right, slip on a banana peel and smash into the waiter, causing a bowl of spaghetti to land upside-down on Moe's head--does this borrow more creative expression than if you decided to have your UI say Quit instead of Exit?

I think that the courts have been inconsistent over the years about how and how broadly they have interpreted issues of copyright infringement.

To say this is to say that the tea party is not fond of Obama, or that a lot of time can be wasted on youtube.

Along those lines, this morning on the news, I heard that some fashion designer is trying, under trademark law, to protect the color red that they use on the soles of their shoes.

This and a couple of similar cases are the predictable result of an ill-advised Supreme Court decision allowing colors to be considered protectable as trade dress. Their theory was that judges should decide whether the color serves a useful purpose (such as making an outboard motor black, which they said could not be protected) or has nothing to do with functionality (such as making attic insulation pink, which they *did* protect). Why they would think that this would do anything other than create a lot of litigation escapes me. Also, there was no guidance on how close a color had to be to infringe. If I were the insulation manufacturer, I'd sue anybody with any LAB value that was positive in both A and B, and see if my luck was in.

Dan Margulis

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Seven months later, the red shoes case gets decided:

From: Kevin Stecyk

Date: September 6, 2012 12:11:18 AM EDT

Subject: [colortheory] Re: Photography & Copyrights

On Sat Jan 28, 2012, Dan Margulis responded to some comments by David Kessler.

David Kessler wrote:

Along those lines, this morning on the news, I heard that some fashion designer is trying, under trademark law, to protect the color red that they use on the soles of their shoes.<

Dan Margulis responded:

Seven months thereafter, the fashion designer Louboutin has won.

From the NY Times: http://www.nytimes.com/2012/09/06/nyregion/court-rules-louboutin-can-enforce-a-trademark-on-its-red-outsoles.html (subscription might be required)

The case of Louboutin v. Yves Saint Laurent has been one of high stakes in high heels.

And when scholars get around to studying the ruling issued on Wednesday by a federal appeals court in Manhattan, they may revel in its analysis of "The Development of the Aesthetic Functionality Doctrine"•ˇ or "̨A Brief History of Single-Color Marks."

But for many, the issue simply comes down to the color red.

On Wednesday, the United States Court of Appeals for the Second Circuit held that Christian Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a contrasting color. Judge José A. Cabranes, writing for a unanimous three-judge panel, characterized that look as having "the requisite 'distinctiveness' to merit protection."

From the Wall Street Journal: http://online.wsj.com/article/SB10000872396390443819404577633350715655214.html (subscription might be required)

French shoemaker Christian Louboutin SA won the exclusive right to use the color red to coat the bottoms of its popular, pricey high-heeled shoes--except when the shoe itself is red, according to a federal appeals court.

The luxury shoes and accessories maker, which has painted the soles of its women's high heels a shade it calls "China Red" since 1992, sued Yves Saint Laurent last year after its rival announced plans to introduce a new line of "monochrome" women's shoes.

The Yves Saint Laurent line would have been the same color throughout, including red soles on its red shoes. The French fashion house claimed it had previously sold monochrome footwear, including shoes featuring red soles.

The U.S. Second Circuit Court of Appeals on Wednesday found that Louboutin had the right to trademark protection for its red soles, as long as they contrasted with the rest of the shoe. However, the ruling, while in its favor, fell short of Louboutin's goal of keeping YSL's red-soled, monochrome shoe off the market.

Kevin H. Stecyk

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From: Dan Margulis

Date: September 11, 2012 6:28:48 AM EDT

Subject: Re: [colortheory] Re: Photography & Copyrights

Kevin Stecyk writes,

The fashion designer Louboutin won.

No, their opponent, YSL (as in Yves St. Laurent) won. Everyone else in the world lost, because the court did exactly what I warned about above, they opened the floodgates for a lot of litigation as frivolous and small-minded as Louboutin's.

Worse, the lower court, which the appeals court reversed, got it right. The question was, under what circumstances in the high fashion industry, can one single color, not used in combination with other specific colors, be trademarked? The lower court judge came up with the correct answer, namely, none whatsoever. Unfortunately, the appeals court, while allowing YSL to win, made sure that smaller designers who don't have YSL's resources are at the mercy of color-trademark vultures.

Louboutin's striking design is of a black high-heeled shoe with a red lacquered sole. They applied for a trademark on the design, and the Patent and Trademark Office was stupid enough to give them one. Not only that, it wasn't for their design--their trademark covers any shoe with a red lacquered sole, with no definition of what "red" means!

Meanwhile, YSL had its own line of colorful shoes, but they were monochromatic: an entirely blue shoe, an entirely red shoe, etc. Loubotin did not challenge YSL's right to market a green or a yellow shoe, but they said that the entirely red shoe infringed on their trademark because an entirely red shoe has a red sole, too, and Loubotin claims to be the only company that can put a red sole on a shoe. They sued, asking that YSL be enjoined from selling the entirely red shoe.

The judge in the lower court could have done the expedient thing, by saying, "Look. The function of trade dress is to prevent confusion as to which product is manufactured by whom. You are suing on the theory that somebody who is paying thousands of dollars for a pair of shoes may confuse an entirely red shoe and a black one with a red sole. They would be more likely to confuse Sarah Palin with Abraham Lincoln. If you are not out of this courtroom in fifteen seconds I'm going to have the bailiff place one of these shoes in a location you won't like."

That would have been perfectly valid, as would as second option. In a deposition, Louboutin himself said that he chose a red sole because red looks uniquely good on fashion runways, an important sales consideration. That already puts the trademark in conflict with the Supreme Court decision, which says that the color cannot be protected unless it is ornamental only.

A third option: the judge tried to figure out what Loubotin was claiming, without much success. YSL pointed out that their own shoe was a distinctly different red than Louboutin's. The judge asked Louboutin's lawyers, what is the red that you are claiming as your trademark? They replied with a Pantone number. The judge then asked, how was YSL supposed to know what that Pantone number is, since it isn't in the trademark, or the application, and your printed materials show a completely different red? No good answer. The judge then asked, how close to this particular Pantone red would YSL have to be before they infringe on your trademark?. Again, no answer. Upon further prompting, the lawyers referenced another document that suggested that it would be any color between yellow and purple. So the judge could easily have thrown the case out on the grounds that even Loubotin doesn't know what they are claiming as a trademark, so how could anyone else?

Instead of choosing one of these easy ways out, he decided to write a landmark opinion. The Supreme Court decision cited above stated that a color cannot be trademarked if it is functional--if it serves a useful purpose for the product. This judge said, quite rightly, that in the world of high fashion a single color *always* has a use and no colors are without function. Therefore, he ruled, high fashion is fundamentally different from other industries and that the use of a single color can never be trademarked under any circumstances. He left alone the use of specific combinations of colors that create an unmistakable brand identity. But one color acting alone, never. And he punctuated the opinion with an account of a hypothetical lawsuit between Picasso and Monet over each other's use of blues. Bravo!

The appeals court decision was mindnumbingly stupid. The three judges seemed to think that the first judge was taking it upon himself to invalidate a Supreme Court decision, which decision they then proceeded to disregard. First off, they rejected the idea that the fashion industry's use of color is in any way different from, say, manufacturers of attic insulation. Second, although they saw that the color red was in fact useful and not just ornamental, they said it wasn't significantly useful enough to make a difference, a concept not found in the Supreme Court decision. So they threw out the first judge's ruling that a single color could not be trademarked in fashion.

This, however, left them with a problem, in that it was going to force them to rule that two shoes that looked no more alike than Jennifer Lopez and Bela Lugosi were going to cause confusion among consumers. So, they simply rewrote Loubotin's trademark. Instead of having a trademark on any shoe with a red sole, the court decreed that it must be construed as any shoe having a red sole and a contrasting top, whatever that means. So, YSL won. They are permitted to sell their all-red shoe, because it does not violate the trademark as rewritten by the appeals judges.

I am sure that there will be no appeal to the Supreme Court; it's doubtful that YSL even has the right to appeal, since they won the case. And Louboutin would be crazy to appeal because they got everything they wanted, except for being able to prohibit all-red shoes.

YSL is a wealthy company, easily able to afford this ridiculous litigation. For smaller designers it could be ruinous. But they are now stuck in a world where color can be trademarked without definition of what the color is; where "contrast" can become a trademark issue at the whim of judges, and where companies like Lamboutin launch litigation against products that can't possibly be confused with their own.

New York federal judges are getting tired of being involved in the sewer that is the fashion industry. In a different case, Gucci was suing Guess on the theory that one of their plastic products could be confused with a leather Gucci equivalent because too many colors and design elements were shared. Eventually, the case was settled for less than the lawyers made. Whereupon the judge hearing the case remarked,"Over the past three years, the parties have put in countless hours and spent untold sums of money, all in the service of fashion — what Oscar Wilde aptly called 'a form of ugliness so intolerable that we have to alter it every six months.' With the instant [i.e., immediate] disputes now resolved, and with Gucci's entitlement to the relief noted above, it is my hope that this ugliness will be limited to the runway and shopping floor, rather than spilling over into the courts."

Dan Margulis