[WikiEN-l] Re: Google Earth copyright (now that you bring it up)

[Anthony DiPierro]

On 1/20/06, Anthony DiPierro <wikilegal at inbox.org> wrote:
> On 1/20/06, Michael Snow <wikipedia at earthlink.net> wrote:
> > Justin Cormack wrote:
> >
> > > On 21 Jan 2006, at 00:19, Ray Saintonge wrote:
> > >
> > >> I'm sure that a Darth Vader Halloween costume would be copyright
> > >> protected.
> > >
> > > Unlikely under US law I believe.
> >
> > You are aware that the movie-related merchandise (action figures,
> > costumes, Lego sets, whatever) sold on the mass market is *always*
> > produced under licenses from the studio, producer, or whoever holds the
> > rights to the intellectual property in the movie? That they will make
> > vigorous legal action against people who mass-produce such items without
> > obtaining a license? That the rightsholders invariably prevail in such
> > cases?
> >
> Are you sure you're talking about copyright law, and not trademark
> law?  I'm not personally aware of any lawsuits based on copyright law
> pertaining to halloween costumes, though that of course doesn't mean
> there aren't any.  A halloween costume may very well be a copyright
> infringement, but if so it's pretty much always *also* a trademark
> infringement.
>
Doing a quick Google for <i>"copyright law" costume</i> gives:

http://www.bitlaw.com/copyright/unprotected.html
"The print found on the fabric of a skirt or jacket is copyrightable,
since it exists separately from the utilitarian nature of the
clothing. However, there is no copyright in the cut of the cloth, or
the design of the skirt or jacket as a whole, since these articles are
utilitarian. This is true even of fanciful costumes; no copyright
protection is granted to the costume as a whole."

and

http://www.orrick.com/fileupload/513.htm
"Elements of Halloween costumes that are separable from the costume
itself may be entitled to copyright protection, the Second Circuit
held.  Chosun sued Chrisha Creations for copying Chosun's Halloween
costumes.  The district court dismissed the complaint, holding that
Halloween costumes are "useful articles" that cannot be protected by
copyright law.  The Second Circuit reversed.  It held that because it
is possible that some of the elements of Chosun's costumes could be
separated from the overall design without adversely affecting the
functionality of the costume, dismissal was improper."

Neither really answer the question of the copyright status of a photo
of a Darth Vader costume in general.  It would depend on the
specifics.  But when I try to think of some I kind of come to the
conclusion that all of this is kind of discussion over nothing.  A
photo of a Darth Vader costume would be nice to have in the part of an
article which is talking about Darth Vader costumes, but it wouldn't
be so useful in say the introductory section of the [[Darth Vader]]
article (unless the costume had a probably proprietary image of Darth
Vader on the front of it or something).

I'd say the ideal solution for illustrating the [[Darth Vader]]
article would be with a free image which depicted Darth Vader.  A
drawing of Darth Vader need not be a derivative work of an existing
non-free Darth Vader image.  If you're going to take the requirement
of freedom *that* far then you'd exclude pretty much every bit of
image or text in the encyclopedia, because pretty much everything is
based in some part on other things.

When one wants to write free text about Darth Vader, one reads other
(usually proprietary) writings and then summarizes them in one's own
words.  Likewise, when one wants to draw a free image of Darth Vader
shouldn't one view other (usually proprietary) images and then
summarize them with one's own artwork?

Anthony