[Foundation-l] Fair Use and Registered Trademarks

[Delirium]

Robert Scott Horning wrote:

> Jean-Baptiste Soufron wrote:
>
>> Actually, I don't think you can digitize some public domain work and  
>> change its title unless you also change its content.
>>
>> At least in France, that would be forbidden by the moral rights  
>> legislation.
>>
>>
> This is likely to be a huge, and perhaps incompatable difference, 
> between American and French law.  Changing and modifying public domain 
> works is commonly accepted, and often encouraged under many 
> circumstances.  That appears to be precisely what has happened here 
> with the Gutenberg Encyclopedia.

Indeed, there was a recent U.S. Supreme Court case unanimously 
confirming this---a company (Dastar Corp.) republished a modified 
version of a public-domain work of film and passed it off as if they had 
produced it themselves, not attributing or mentioning at all the 
original producrs.  The original producers (Twentieth Century Fox Film 
Corp.) sued, and lost, because under U.S. law (as confirmed in this 
case), the original author of a public-domain work has *no* rights of 
any sort, not even the right to be credited, since by definition 
public-domain works are not owned in any fashion by anyone.

See: [[en:Dastar Corp. v. Twentieth Century Fox FilmCorp.]]

Robert Scott Horning wrote:

> From what I see, based on some research I've just done searching 
> various web pages and trying to read court opinons, etc. (IANAL) the 
> use of a trademark is reserved for the company who holds it.  In this 
> case we (or at least I am) trying to advertise the project and discuss 
> the project in public forums.  In this situation, I am not legally 
> entitled to describe the project as "Wikisource Encyclopaedia 
> Britianica, 11th Edition", because that implies endorsement from 
> Encyclopaedia Britianica, Inc.  This puts the Wikimedia Foundation 
> into a real legal bind if that trademark is used widely, for example 
> as a hyperlink from Wikipedia articles to Wikisource, or even 
> discussed outside of Wikimedia projects.

Well, this is a gray area of law, as most trademark law is.  There is 
room for acceptable use of a trademark when reporting factual 
information, however, even in advertising---Coca-Cola uses the work 
"Pepsi" in some advertisements, for example those that report the 
results of taste tests between the two companies' products.  Simply 
stating that a verbatim copy of the 11th edition of the Encyclopaedia 
Britannica is in fact "The 11th Edition of the Encyclopaedia Britannica" 
seems like it might be a mere factual statement and permitted, but I 
wouldn't be willing to bet anything on that.

-Mark