Several readers have asked for our thoughts regarding the news that the Cincinnati Bengals threatened to sue a fan-run blog for copyright infringement.
If we’re being honest (and we always are, except when we’re not), the phrase “better them than us” was the first thought that came to mind.
Then again, what happened in this case wasn’t arbitrary. StripeHype.com got sufficiently close to the line to trigger a cease-and-desist letter, apparently by using images and logos that infringed on the team’s copyrights. And though we’ll defer to the experts in copyright law who’ll hopefully post their views on the matter below (without charging us), it’s our understanding that if a company that owns a copyright is aware that someone is infringing on the protection and fails to act, the copyright could be jeopardized.
So the challenge for any media company (web site, newspaper, magazine, or otherwise) is to acknowledge and respect the legal protections belonging to other persons or companies. Though some of our ads contain NFL logos and other copyrighted materials that the companies like Sprint and Bank of America (and, you know, the NFL itself) have a license to use, we never have — and never will — incorporate into the design of the site images or logos that would potentially encroach upon the rights of the NFL or any of its member clubs.
This is hardly a new phenomenon. We can’t find a link to it, but we clearly recall the Bengals pulling the same routine with a similar web site several years ago, back in the days when web sites were simply called “web sites” and not “blogs.” And for those of you (like me) who are old enough to remember the Topps football cards of the early 1970s, the logos on the sides of the players’ helmets weren’t obscured with what looked to be a felt-tip pen that had been left in a sauna without a cap for the aesthetics. Topps didn’t have an NFL license, and thus Topps couldn’t put the NFL logos on its products.
(UPDATE: Here’s the link to the story about the Bengals’ assault against the site known as mikebrownsucks.com.)
While it’s easy to pick on the Bengals (and fun, too), they actually are doing the smart thing by ensuring that its rights to the logos and images are protected. Though they might have gone about it differently (perhaps by explaining nicely to the folks at StripeHype.com that the rights needed to be asserted in order to prevent the rights from being jeopardized), we tend to think that the move itself reflects prudent business judgment.
Then again, we also think the Bengals’ logos and uniforms are hideous, so maybe they’d be better off to lose the copyright protection and start from scratch with something else.
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May 7th, 2008 at 3:25 pm
no street cred till you have at least one cease and desist letter
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Rating: 5 / 5 with 1 rating(s)
May 7th, 2008 at 3:26 pm
Nothing like good PR and letting your fans know you appreciate them!
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May 7th, 2008 at 3:28 pm
P.S. Please don’t sue us.
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May 7th, 2008 at 3:29 pm
“it’s our understanding that if a company that owns a copyright is aware that someone is infringing on the protection and fails to act, the copyright could be jeopardized.”
Not a lawyer, but believe this is true. The rock band Phish sued a fan-based clothing manufacturer for copyright infringement, and the t-shirt maker promptly gave the judge a picture of the drummer wearing one of his “Glide” shirts. The judge thereafter asked the band’s lawyers, “I don’t understand, is the band for or against the t-shirts?”
Bottom line is I agree, you’ve got to aggressively protect your copyrights or risk, at the least, sending the wrong impression to others with a mind to do the same.
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May 7th, 2008 at 3:44 pm
they are within their rights completely, and since when has a pro team actually cared what their fans thought. and they probably arent saying good things…
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May 7th, 2008 at 3:45 pm
Subtle and smooth. Never two of the Bengals’ strengths.
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May 7th, 2008 at 3:52 pm
this is merely a business doing its business. u could expect campbell soup or p&g to do the same thing.
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May 7th, 2008 at 3:53 pm
Not at the NFL level, but a few years ago the University of Miami sued a high school that used the U as its logo.
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May 7th, 2008 at 4:04 pm
I assisted a similar blogger when my beloved Steelers came after his site. Ultimately, he heeded my encouragement and went to the Post-Gazette who published a very pro-blogger story on the dispute. Ultimately, the two worked together to resolve their differences and both the Steelers and the blogger have operated well together since the incident.
Here is the link:
http://www.post-gazette.com/sports/columnists/20010329thebig.asp
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May 7th, 2008 at 4:19 pm
“it’s our understanding that if a company that owns a copyright is aware that someone is infringing on the protection and fails to act, the copyright could be jeopardized.”
Totally, completely, 100% wrong. I’m not a lawyer but I’m in an industry where intellectual property is a fairly important thing. People - evidently lawyers, too - mess this up all the time. The “defend or lose” thing only applies to *trademarks* that can become generic. Think “kleenex” or “coke”.
Copyrights, on the other hand, *can NOT* be jeopardized by a lack of defense. Copyrights are automatically generated simply by creating content, and they are not lost unless sold or until they run out (which takes a helluva long time). Additionally, they simply can’t become generic because copyrights apply very narrowly to the specific work that was created - so there’s no way something can become generic.
For instance, this post is copyrighted by me. If you copy it, I can make you stop. If I choose not to so, that doesn’t mean that my work falls into the public domain. I can selectively enforce it as much as I want.
Bottom line is, the Bengals’ legal department has decided to be a bunch of asshats. And as a fan of the team, I have one more thing to be disgusted about this year.
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May 7th, 2008 at 4:20 pm
didnt texas a&m go after the seahawks over the “12th man” trademark ?
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May 7th, 2008 at 4:38 pm
Hey DC_Bengals_Fan, I’m no expert either, but wouldn’t the Bengal’s logo count as a trademark, and not a copyright? I’m thinking this is a trademark issue that has simply been mis-named by the author of the original article as a copyright issue.
Quote from the article:
“This also means that I cannot give away the Utecht Jersey. My apologies for all of you who were commenting and posting in order to win it. A privately owned jersey, autographed by the player on his own time, and because I’m promoting it as “a Cincinnati Bengals Jersey” I have been accused of copyright infringement for using their trademarked name. “
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May 7th, 2008 at 4:39 pm
Speaking of Coke®…
http://www.wipo.int/amc/en/domains/decisions/html/2001/d2001-0618.html
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May 7th, 2008 at 4:45 pm
Who are you to judge the Bengals and to make fun of them. If they own the copyright then they have every right to go after who ever infringes up on it. As a Bengal fan they might have gone about it a different way, then again they might have contacted them and was given someone who didn’t care. We truly don’t know what went on behind the scenes and to judge them or to make a report with out all the facts is poor reporting.
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May 7th, 2008 at 4:52 pm
Same thing is happening within the Ford (FoMoCo) domain. They have cracked down on websites and businesses that have Ford or any trademarked Ford item in their name. They even went so far as to attempt to shut down the production of a calendar from a Ford Mustang Cobra fan club because there were Ford logos on the cars pictured.
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May 7th, 2008 at 5:02 pm
“Hey DC_Bengals_Fan, I’m no expert either, but wouldn’t the Bengal’s logo count as a trademark, and not a copyright? I’m thinking this is a trademark issue that has simply been mis-named by the author of the original article as a copyright issue.”
Yes. Sorry, they definitely would be required to remove the trademarked logos, but the photos would be a different matter. If requested, they would have to remove any photos that the Bengals team owns the copyrights to (for example, if a team employee took the pictures). Other rights holders would be able to exert their rights for the pictures, which the author very mistakenly called “in the public domain”. But there’s no risk at all of losing their copyrights to the photos.
I agree with you, there was probably confusion regarding trademark/copyright. But if photos were mentioned, then they must be claiming both. And that’s where Florio’s justification of it falls flat.
Here’s another reason why it might not make sense for the Bengals to attack the site:
Trademarks are usually lost because they become generic. This happens when people start using a term like “kleenex” to represent any paper hanky, or “coke” to mean anything brown and fizzy. So let’s say a college team started using the Bengals’ logo on the helmets. That would be on the road to dilution, becoming generic, because it associates the logo with something other than the NFL Bengals. However, here the site is using the Bengals logo as a representation of the Bengals team, which is exactly what the logo is for. As such, it’s hard to argue that there would be real risk in letting the site use the logo because that use doesn’t make it generic, it keeps it specific. If that’s the case, then the Bengals have every right to make them stop, but there was probably no risk at all in letting them use it.
In this case, I think the legal department just operated on autopilot without actually thinking. But I’m no lawyer. Maybe if a resident IP lawyer happens to stroll by we can get a real expert to weigh in.
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Rating: 5 / 5 with 2 rating(s)
May 7th, 2008 at 5:06 pm
Too bad the Bengals don’t exert as much effort on the football side of the operation as they do the “let’s do everything we can to protect our ability to line that blight on the NFL Mike Brown’s pockets” side of the operation.
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May 7th, 2008 at 5:41 pm
Wonder if the Bengals would consider dropping the issue alltogether if the site operators would….I don’t know….go out and beat up a pregnant woman?
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May 7th, 2008 at 6:46 pm
All of this is above my head …
I want to be a professional journalist, but my parents insist I go to law school. (More money at the latter, more fulfillment from the former? What to do, what to do.) If I do the latter, I can understand what I just read!
But I actually agree that the Cincinnati Bengals are doing the right thing here.
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May 7th, 2008 at 6:50 pm
While you are correct about the Bengals legal rights, you are wrong about the uniforms. They rock!
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May 7th, 2008 at 7:01 pm
Mike Brown shouldn’t have to deal with this crap. This isn’t what he bargained for.
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May 7th, 2008 at 7:40 pm
So, I’m kind of confused… If ProFootballTalk doesn’t use NFL logos and such, how can the “Pic of the Day” stuff be legal? Aren’t the photos also NFL property? Or how does that work?
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May 7th, 2008 at 8:01 pm
Maybe someone can explain this to me, but the article I viewed is dated 1-5-2001. That’s 7.5 years ago. Has this been dragging on this long or am I missing something?
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May 7th, 2008 at 8:10 pm
Sounds like the NFL as a hole…I said hole.
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May 7th, 2008 at 8:11 pm
This has happened more than people realize.
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