Copyright, Trademark, and Tradedress
Saturday, May 11, 2002 by Frogboy | Discussion: WinCustomize Talk
Unfortunately, most people on the Internet know very little on these issues. That doesn't seem to stop them from writing highly charged opinionated articles that make broad claims of intellectual property.
First off, forget what you think you know about IP law in theory. Theory and practice are two different things:
http://www.avault.com/developer/getarticle.asp?name=bwardell8
In real life, intellectual property protection goes as far as your money will take you. So forget the "Oh well Microsoft couldn't do anything about it because they'd be in the wrong on issue X, Y, Z." Wrong. If someone has money and you don't, they can grind you into the dust. You tick off a company and they can squash you like a bug no matter how righteous you think. And if you're a company, a bigger company can do the same to you.
That said, let's talk about the issue as it relates to skinning:
There are 3 issues that crop up:
1) Copyright violations
2) Trademark violations
3) Tradedress violations
1) Copyright violations are what are known as rips. People who aren't familiar with IP law think everything is a copyright violation. They're wrong. Copyright law is very specific. And it has a lot of gray areas. It has to do with taking someone elses material and using it without authorization and reproducing it. There is a lot of gray area on derivative works (hence where the lawyers come in). This is particularly true in digital art. If I take your wallpaper, apply tons of filters to it, and resubmit it, am I violating your copyright? It's a gray area that only the moderators of a given site or the court system can really decide, typically on a case by case basis.
Here at WinCustomize, we throw out copyright violations. Rips are copyright violations. You take someone's wallpaper and upload it here, that's a copyright violation and it's history. You take someone's skin and upload it here, same deal. You take someone's Hoverdesk theme and port it to Litestep without permission that's a copyright violation and it's gone.
The gray area comes up when you've made significant changes to it. Let's say you've taken a Kaleidoscope theme and ported it to WindowBlinds but doing so changed the actual graphics quite a bit but the final skin looks pretty much the same. Does that violate copyright? That's a harder case but it DOES violate trade dress which we'll talk about in a minute and we'd delete such a skin here. Having a gray copyright issue is one thing, add tradedress and that puts it over the top.
2) Trademark. This is where you take something that is designed to be associated with something else and use it for your own purposes.
There are two types of trademark issues:
a) Unauthorized use of trademark
You start up a fan site for Episode 2 and have Star Wars logo and other things on there from the movies and you hvae unauthorized use of trademark. Some companies work hard to enforce their trademark and stop fan sites. The X-box and Lord of the Ring skins here are unauthorized uses of trademark. We let skins like that here because they fall in the same category as fan websites.
Trademark violations are a different matter. That's where you're using someone else's trademark and re-defining it. This creates confusion which is why trademarks were created in the first place. If I took that X-box logo and used it to create "X-box Computers" which aren't affiliated with the game machine at all or are using it to sell a product designed to give users a false association then that can be a serious problem.
The two are quite similar and sometimes they decide that the former falls into the latter. Hence, if I start up a Coca-cola fan site they may be okay with that until I start selling Coca-Cola T-shirts. Then they may shut me down for giving a false association with their trademark.
3) Trade dress
This is fairly specific to skinning actually. When Apple demands people get rid of Aqua skins, they refer to Trade DRESS violations unless the skin actually uses the Aqua images and then they can bring in copyright violations as well (yes, icons ARE protected by copyright).
Tradedress is similar in enforcement to trademarks. Many many sites use the XP look. This is an unauthorized use of trade dress. The same is true of Luna skins. Microsoft is well aware of these and thus far has not objected.
So why do sits like Wincustomize allow OS skins? Aren't they rips? Nope. They do not violate copyright (unless they literally stole the bitmap resources which is possible but hard to tell). But they are unauthorized use of trade dress.
So when people argue that skin sites have double standards on ripping, the fact is, no, they don't.
Skins Sites police copyright violations. Rips are copyright violations. We find them, we eliminate them.
We trade the latter two issues (trade dress and trade mark) much like the equivalent of fan sites.
Geocities and Yahoo have zillions of Star Trek, Buffy the Vampire slayer, Star Wars, Lord of the Rings, etc. fan sites on them. There are fan sites for most popular games, etc. WinCustomize treats this in the same way as Geocities and Yahoo handle the fan sites they host - if the trade dress/trademark holder objects, we'll help them enforce their rights. Otherwise we'll work on the assumption that they're sane companies that want positive expressions by fans to exist.
I for one would love to see an Episode II theme. And I suspect if George Lucas were into skinning he'd want one too.

Reply #23 Wednesday, May 15, 2002 9:27 AM
It was obviously a rip, since it was a wallpaper downloaded from the official Spider-Man website, and copyrighted to Sony Pictures:
http://www.spiderman.sonypictures.com/popups/wallpapers/spiderman/01_1024_768.html
Reply #24 Wednesday, May 15, 2002 9:48 AM
Reply #25 Wednesday, May 15, 2002 9:49 AM
Reply #26 Wednesday, May 15, 2002 10:01 AM

Reply #27 Wednesday, May 15, 2002 11:30 AM
Yes, we'd love to have Spiderman logons.
However:
The spiderman logon was literally a wallpaper created by someone else and just turned into a logon.
Therefore it's a copyright violation, therefore a rip, therefore it has to go.

If the person had themselves created the image (i.e. made their own spiderman wallpaper) then we would have kept it if it passed moderation (i.e. quality).
Reply #28 Wednesday, May 15, 2002 11:55 AM
But, to be totally honest, I don't believe that will ever be a problem. I have yet to see a logon/theme/skin with a movie character that the artist would have drawn himself. And I doubt I will ever see one. Pretty much all the time, it's just taken from the web site, with sometimes some small modifications.
Reply #29 Wednesday, May 15, 2002 4:55 PM
Reply #30 Wednesday, May 15, 2002 9:02 PM
also, what you're referring to would really not be copyright, but rather trade dress. copyright would refer to the code itself, unless i'm mistaken.
Reply #31 Thursday, May 16, 2002 11:25 PM
Reply #32 Friday, May 17, 2002 12:30 AM
Now I know the pics are copyright. But since I mixed them together is it considered fan art, or copyright infringement.
One more thing, on the top is a episode II logo, the bottom is a lucasarts logo. I placed them there to let people know that the film is Episode II, and that it is by lucasarts. I did not intent for it to be copyright logo infringement.
Just trying to stay on the thin grey line
Reply #33 Friday, May 17, 2002 12:42 AM
It doesn't matter how much you arrange the pics, you weren't given permission to display them in any arrangement publicly, but you are free to 'do it' on your own private computer.
That is the difference....

Reply #34 Friday, May 17, 2002 2:02 AM
Babya Menu, File,Edit,View,Special, Help.
Reply #35 Friday, May 17, 2002 6:04 AM
Reply #36 Sunday, May 19, 2002 6:45 AM
Reply #37 Monday, June 3, 2002 4:24 PM

Reply #38 Monday, June 3, 2002 4:39 PM
Let's say you want to make a PlayStation 2 theme. Assuming you were creating the graphics yourself (i.e. no copyright violation) then the issue becomes trademark/trade dress. Different companies have different feelings on that.
Generally speaking, things that PROMOTE a company or product are smiled upon by the holders of the IP. I.e. Paramount likes Star Trek sites because it promotes their show.
The key being that it is promoting a non-related product or service.
Different websites are more stringent than others. WinCustomize is probably about the most stringent on the net because we kick out copyright violations often when they are being used to promote a non-related thing (i.e. if someone uploads a Spiderman wallpaper created with artwork from a Spiderman poster we are likely to delete it strictly because it's a copyright violation. Other sites are likely to keep it though as they take a more "if it promotes a non-related product/service we'll take it" view).
People tend to over complicate the issue usually in order to try to arrive at the conclusion they want. IP laws were created to protect artists so that the incentive to undertake creative endeavors would not be harmed. That's really the bottom line of it. That's why ripping is so bad. It's not just that you're using someone else's stuff without their permission but that you're taking away their incentive to create new things.
What good is working on something new and original if someone else can get a name for themselves just ripping off your work? There are certain people already getting quite a following purely by stealing other people's work.

Reply #39 Tuesday, June 4, 2002 2:47 AM
You did mention gray areas didn't you? All should know that "gray areas" are hardly ever turned to clear!

Reply #40 Tuesday, June 4, 2002 10:58 AM
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Reply #21 Wednesday, May 15, 2002 9:02 AM
According to Brad, it's fair use. According to Paxx, it's a rip. It's a rip to me also! Paul, is avoiding the issue it seems.