Can Health And Human Services Copyright New Smoking Package Warnings?

from the copyfraud? dept

Fri, Jul 8th 2011 6:33am — Mike Masnick

As you hopefully know, content created by the US federal government is supposed to automatically go into the public domain. There are a few exceptions, mainly having to do with work created for the government by others. But Dave P. reasonably asks why the highly publicized new graphic (in more ways than one) "warning" labels for cigarette packages appear to have a very blatant copyight notice, claiming that the copyright is held by HHS (Health & Human Services). You can see the full PDF, which is also embedded below, but you can see the first image here, with a © notice in the lower lefthand corner:

The really bizarre one is the last one, which appears to just be a red triangle with an exclamation point:

It appears that a red triangle with an exclamation point is widely used in other areas as well. In fact, if you do an image search for such things, you can find tons upon tons of red triangles with exclamation points inside.

Perhaps HHS should sue.

Or, better yet, recognize that this is copyfraud and drop the bogus © notices.

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Filed Under: copyright, hhs, smoking, us government

34 Comments

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senshikaze (profile), 8 Jul 2011 @ 6:49am

Facts?
On the first one: can you copyright facts?

If so:
The sky is blue.
(c)2011 senshikaze, all rights reserved.
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- Anonymous Coward, 8 Jul 2011 @ 7:15am
  
  Re: Facts?
  But without copyright who would create facts?
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- Overcast (profile), 8 Jul 2011 @ 8:27am
  
  Re: Facts?
  On the first one: can you copyright facts?
  
  One might fist have to ask if all the claims they make are actually facts.. :)
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- ThatAVGuy (profile), 8 Jul 2011 @ 9:10am
  
  Re: Facts?
  Is the Sky Blue? or do you just perceive it to be blue......
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  - ComputerAddict (profile), 8 Jul 2011 @ 9:19am
    
    Re: Re: Facts?
    The sky is actually every color but blue!
    
    as the eye perceives what color is reflected off the object, not the color that is absorbed by the object.
    
    © 2011, ComputerAddict. All Rights Reserved
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    - Bengie, 8 Jul 2011 @ 10:07am
      
      Re: Re: Re: Facts?
      "Color" is the frequency that that is emitted. It is impossible for an object to absorb a color.
      
      I guess what I'm getting at is the color is the perception. You cannot separate the color from perception.
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out_of_the_blue, 8 Jul 2011 @ 6:50am

May startle you to learn that "the US federal government"
is corporatized: HHS may be at most quasi-governmental. -- As is the Federal Reserve, and the IRS.

Besides that, the gov't can just assert this trademark by force, maybe claiming it too is vital to "national security".
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Anonymous Coward, 8 Jul 2011 @ 7:04am

Actually, I think they have copyright not the idea of ! triagle, but this specific execution with the shading and stuff. Remarkably, you can get a copyright on something that is common, if you narrowly restrict it to the actual specific content and not the general content.

I'm amazed that someone who chats about copyright so much wouldn't know that.
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- Transbot9, 8 Jul 2011 @ 7:39am
  
  Re:
  Doesn't pass the "Idiot in a hurry" test commonly used in court these days. They also are not changing the meaning of the symbol by the specific shading.
  
  I suppose a good lawyer could argue either way, but symbols are typically covered under trademark rather than copyright. On top of that, it is an internationally recongnised as a symbol in the public domain.
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  - Anonymous Coward, 8 Jul 2011 @ 8:06am
    
    Re: Re:
    You miss the point. Idiot in a hurry doesn't apply here, because it is a very specific use, with a very specific design graphic. The symbol isn't what is copyright, it's the presentation of the symbol, the graphic. It's the color and texture and shading, which are all unique to this particular rendering.
    
    It doesn't suggest that they are claiming copyright on ! signs. That is just Mike Masnick leading you down the garden path.
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    - Anonymous Coward, 8 Jul 2011 @ 8:27am
      
      Re: Re: Re:
      It's clearly unoriginal as far as exclamation points inside triangles go.
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    - Ed C., 8 Jul 2011 @ 10:44am
      
      Re: Re: Re:
      Wait, you mean that I can use Mickey Mouse as long as my version has a "color and texture and shading" and a "very specific use" that are different from any of Disney's designs? Good luck arguing that to a judge...
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      - Anonymous Coward, 8 Jul 2011 @ 10:53am
        
        Re: Re: Re: Re:
        Nope, there you fail as well.
        
        Mickey Mouse as a character is trademarked. So you can't go there.
        
        The ! sign is generic. This specific graphical rendering of it is copyright. You can make all the ! signs you like, you just can't copy this specific one.
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- Anonymous Coward, 8 Jul 2011 @ 7:43am
  
  Re:
  I don't get you people. If someone suggests that remixes are art, you scream and shout that they most certainly aren't ("Why are you against creativity!!!"). But when something like this shows up, suddenly it's "creative" and can be covered by copyright.
  
  Make up your minds already!
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  - Atkray (profile), 8 Jul 2011 @ 8:45am
    
    Re: Re:
    This.
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  - Anonymous Coward, 8 Jul 2011 @ 10:54am
    
    Re: Re:
    Yawn. It's not a remix. Don't be a dolt.
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    - Anonymous Coward, 8 Jul 2011 @ 11:12am
      
      Re: Re: Re:
      Yeah! It's a 1,000,000% original!
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Andrew Norton (profile), 8 Jul 2011 @ 7:12am

second one
The second is actually a UK roadsign. It's the sign for 'other danger'(can see it on page 51 here http://www2.dft.gov.uk/pgr/roads/tss/tsmanual/trafficsignsmanualchapter4.pdf)

The fact they've altered the shading in a very minor way means that they have taken a copyrighted piece of art (the sign) and altered the shading ever so slightly, and then tried to claim copyright on it, when it's functionally identical. It's clear copyfraud.
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Anonymous Coward, 8 Jul 2011 @ 7:14am

Maybe someone should sue HHS for claiming privileges over something they don't have privileges over.

Then again, the penalties for fraud are small compared to the penalties for infringement.
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bjupton, 8 Jul 2011 @ 7:50am

I wonder if this is copyrighted under the misguided (in multiple ways) notion that this will allow them to go after people who mock these ads with parodies?
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The Baker, 8 Jul 2011 @ 7:59am

I wonder if whoever created the "artwork" just robotically plastered a copyright symbol on anything they generate. Just like they are taught in school ... copyright everything.

We are so blind to these little symbols because they are on EVERYTHING� that perhaps no one reviewing it noticed.

Then again it could be a conspiracy ... US Homeland Security wants to own the rights to all UK road signs???
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- Overcast (profile), 8 Jul 2011 @ 8:29am
  
  Re:
  That's very possible The Baker..�
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  - The Baker�, 8 Jul 2011 @ 10:12am
    
    Re: Re:
    You can't copyright my trademarked name!!!
    MY patent forbids it.
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- Anonymous Coward, 8 Jul 2011 @ 9:03am
  
  Re:
  what symbol, I don't see any symbols
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mike allen (profile), 8 Jul 2011 @ 8:34am

and UK fag packets! we have had much worse things on ciggy packets in the UK for years not just that but traffic lights on food packaging etc gov guidelines pushed at you on posters some people get really pissed at it.
http://www.youtube.com/watch?v=e1sI3pXo9pQ
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Anonymous Coward, 8 Jul 2011 @ 8:47am

"Works of the United States" are by statute deemed to be exempt from Title 17 and the rights associated this Title. In other words, such works would ordinarily reside in the public domain.

However, these is a provision in the pertinent statute that nothing in it prevents the USG from holding copyrights trnsferred to it by "assignment, bequest, or devise".

To date there has been only one case of which I am aware that has considered this statutory provision. In that case it was held that the USG did in fact hold copyright to a work that had been assigned to it because under the facts of the case it was not clear that the reasons underlying the statutory prohibition had been paid short shrift. This was the Community for Creative Non-Violence case within the DC Circuit about 20 years ago.

Hence, the answer to the question at this time can only at best be answered "who knows?" without a detailed analysis of the facts associated with the creation of these ads. If they were done by persons in the USGs employ the answer is obviously "No, copyright does not exist." If however, they were done by third parties, then further facts need to be fleshed out before an opinion can be offered.
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- Anonymous Coward, 8 Jul 2011 @ 9:58am
  
  Re:
  I think you're right, but a better question might be "Why does HHS want to own a copyright on this?"
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  - Anonymous Coward, 8 Jul 2011 @ 11:14am
    
    Re: Re:
    Two answers come to mind (simply because I have dealt with the USG on this issue more times than I can ever hope to recount):
    
    1. Except for a very few lawyers within the USG who virtually never come in contact with the agencies, those lawyers who do have almost certainly never read any part of Title 17.
    
    2. See Answer 1.
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  - Anonymous Coward, 11 Jul 2011 @ 8:31am
    
    Re: Re:
    As AC17 notes, it's certainly possible (and indeed quite likely) that HHS employees did not create these images themselves, and instead HHS contracted with an outside entity to make them. Such a work wouldn't necessarily be a "work for hire," so the outside contractor would be the copyright owner, and could sell or assign copyright back to HHS.
    
    And as for why HHS would want to copyright these images, or rather, to claim copyright in them (the images would be copyrighted whether HHS claims it or not). I can only speculate, but might that not be an additional legal tool to pursue people cranking out counterfeit cigarette labels?
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Anonymous Coward, 8 Jul 2011 @ 2:14pm

It may seem cool to be able to smoke out of your neck, but if you want to see real smoking talent, watch "Emmanuelle". There's this Asian chick who smokes...well, watch it and you'll see.
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- slander (profile), 8 Jul 2011 @ 9:55pm
  
  Re:
  That's nothing. Last Thursday, some Thai chick beat me at ping-pong... and she wasn't using a paddle.
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chris, 8 Jul 2011 @ 8:03pm

Has anyone ever faced legal repercussions for making a false copyright infringement claim, besides just having to pay the defendant's court costs? Maybe if all of us just sent out 10 DMCA notices a day to whomever, it would make clear that such penalties are desperately needed.
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- Andrew Norton (profile), 9 Jul 2011 @ 8:47am
  
  Re: false claism
  Lenz v universal is the only one, I believe.
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Cloksin (profile), 12 Jul 2011 @ 1:45pm

Lets see what HHS has to say about this.
Ok, so after reading this post last week I went to the site linked to and left a comment there:

Take the copyright notice OFF the images since federal agencies cannot copyright content!

Federal government cannot copyright content, anything created by a federal government agency must go immediately into the public domain, yet your images clearly display a copyright logo misleading viewers that the HHS holds the copyright on these images.

Just today I recieved this back from one of their admins(I've left his name out in respect of privacy):

Hi there.

I wanted to get back to you with some information regarding your concern.

The images used for the graphic health warnings were created by government contractors who established copyright in the works, and assigned that copyright to the government. FDA/HHS holds the assigned rights. The images that will appear on cigarette packaging and in cigarette advertisements will not display a copyright logo.
At this time, we have given permission for use to the companies required to display the warnings on cigarette packaging and in cigarette advertisements, as required by the FDA regulation. Currently, parties can also use the images as permitted under the Copyright Act, which means that individuals can use the images for their own personal use and for fair use such as news reporting or parody.

xxxxxxxxx
Admin, FDA Tobacco Retailer Education
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