HBO Issues Takedown For Artwork Made By Autistic Teenager Because Bullies Gonna Bully Y'all
from the takedowns-are-coming dept
It's well-known at this point that HBO guards its intellectual property on the Game of Thrones franchise more jealously than a direwolf with a freshly harvested bone. To that end, the company often times treats some of its biggest fans with disdain, such as when it killed off viewing parties that would otherwise generate more interest in the show, or the times it abused the DMCA process as a way to keep spoilers from the show from permeating. These actions are indeed annoying, but they lack a certain something in the pure evil department.
Unlike, say, HBO issuing a takedown on some art produced by a thirteen-year-old autistic child just because that art included a trademarked catchphrase from the show.
"My daughter, who happens to be autistic, was doing an art challenge called Huevember which consisted of doing a piece of art based on a different colour as you worked your way round a colour wheel," Jonathan Wilcox, of Edwinstowe in the UK, told The Register on Thursday.
"She was uploading her pictures to a variety of sites and sharing them on Facebook. For this particular piece, she decided to title it 'Winter is Coming.' I do not believe she uploaded the picture to RedBubble to make any particular financial gain, she just thought it a sensible place to put it."
So a child makes some art and puts it on the internet, because that's what you do these days. It should be noted that the artwork was not being sold on the site, only displayed. HBO's lawyers come across it and take it down, with nary a conversation. And, lest you think that the artwork itself had something to do with the show, thus ameliorating HBO's actions, here is the artwork in question.
As someone who watches the show regularly, the image doesn't appear to me to be in any way connected to the show. Nor, likely, is the text itself. It's far more likely that a child that created some art at a certain time of year came up with the phrase independently. But, because that phrase is trademarked by HBO, the takedown was issued.
The takedown notice forwarded by Redbubble to Wilcox doesn't specifically cite trademark as the law being applied, but it's the only one that makes sense. That means that the test in question is whether or not anyone is going to confuse this artwork as being created by or endorsed by HBO. And if you believe the answer to that question is "yes," then I'm surprised you're able to put your pants on in the morning. The whole thing seems to be confusing, because even though the DMCA doesn't apply to trademark law, Redbubble is clearly treating it as a DMCA takedown -- where it just replaced the normal "copyright" terms with "IP/Publicity Rights" -- and even uses its DMCA email address for any "counternotice." And the "counternotice" process is identical to a DMCA counternotice process, which requires the family to accept jurisdiction in California (remember, they're in the UK) if they counter the claim.
This is ridiculous on many levels, but once again highlights how the power of copyright to be a tool for censorship grows and expands and swallows other legal doctrines in the same neighborhood.
You can sense Wilcox's frustration in his comments.
"My first reaction to the letter was 'FFS.' HBO should get a life or stick something where the sun doesn't shine," Wilcox said.
"On further investigation, it appears HBO are doing this all over the place regarding this phrase. It seems to have upset a lot of people on Etsy and elsewhere who have had the same or similar letter."
This is the problem when large entities and their legal departments use the DMCA (or a quasi-DMCA-like) process like a shotgun, spraying censorious buckshot at many targets, only some of which might be truly infringing. This lack of legal nuance manages to catch innocent content producers in the crossfire -- in this case an autistic teenager who painted a picture. One wonders how the more virtuous heroes from the show would react.
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Filed Under: censorship, copyright, dmca, game of thrones, takedown, trademark, winter is coming
Companies: hbo, redbubble
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Can we have another chorus of...
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Re: Can we have another chorus of...
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Do it everywhere
Or...maybe not...
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Re: Do it everywhere
Xerox had this problem when everyone was referring to copiers in generic ways as Xeroxes... it truly does cause a risk to your trademark if the term becomes too general or generic.
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The phrase is used constantly in the northern hemisphere ... it's simply part of many statements in this area. How can they be allowed to trademark a phrase which has existed for years, and that people use all the time (long before this show, or any thought of the show existed)?
Insanity.
This book was printed in 1873, with a poem titled "Winter is Coming" ...
https://books.google.ca/books?id=ERMtAAAAMAAJ&pg=PA100&lpg=PA100&dq=winter+is+coming& amp;source=bl&ots=hAG5ku4DgP&sig=6aISIYSoyiNV7E-QHjdiv8zLq-U&hl=en&sa=X&redir_es c=y#v=onepage&q=winter%20is%20coming&f=false
There's many references to winter is coming on the web and in old books, none of which have anything to do with some silly TV program. They shouldn't have been granted the TM to begin with.
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And that's the problem right there.
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No, I disagree. There's nothing wrong with such a trademark. The key is how it is enforced.
For example, we have Dove brand soap and Dove brand chocolate. Soap and chocolate do not compete with each other, and neither one will issue a takedown if a kid draws a picture with the word "Dove" on it.
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Funny that though ... I checked my gmail account tonight and the first email was titled "Winter is Coming" ... and it contained an updated game from G5 games (not related to the Game of Thrones).
The use of the phrase is all over the web, and doesn't appear to have generated any angst (so far) from HBO, so it seems odd they would have picked on a child's drawing which appears to be unrelated to the show in any way.
Doesn't make sense, but the full story isn't always what we see either.
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There is something very wrong with such a trademark, because now any time anyone wants to use the phrase "winter is coming" in a work of fiction they are at risk of legal action from HBO. They have taken a normal part of the English language and claimed it as their own.
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The problem is the abuse that you describe. A trademark doesn't prevent others from using the expression. It only prevents using it as a brand. At least in theory.
And that lead to lots of stupid abuse that have been occurring over and over again.
- suing anyone for just using the trademarked expression, whatever the context is.
- protecting parts of a copyrighted work as a substitute for copyrighting this small part by itself. (Which is a way to vaguely claim "infringement on IP" for what would otherwise be an obvious fair use.)
- extending "copyright" beyond its time limit.
And so on.
Trademark is not necessarily the enemy. As with many other systems, abuse is the enemy.
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Yes, but given human / corporate nature, when the system is set up to make abuses easy, they are guaranteed to happen. So given the way the system works today, allowing a trademark on "winter is coming" is in itself problematic because it invites abuse. To avoid the abuse, the trademark system needs to be reformed in some way, whether that's to make it easier to dismiss invalid lawsuits, harder to get stupid trademarks, or something else.
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And how on earth can they attempt to use a copyright-style takedown notice for trademark infringement?
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Maybe we should all label the with something like "This is my picture (painting, drawing, art, etc) and has nothing to do with any thing else"
Go for it!
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A sentiment shared by nearly everyone else not paid by HBO or in the pocket of the "un-intelectual monopoly"/intellectual property ("we gots to collect it all") business.
It is a remarkable picture for the artwork of a 13-year old, and maybe this is an education for artists everywhere about how HBO and the "un-intelectual monopoly" business value their contributions to society. If you are making them money, you are a cow which shortly will be slaughtered for their taste/waste. If you aren't making them money, you are the dirt they walk on.
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HBO sucks. I had it for a year and watched it 3 times.
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They committed a felony when submitting this
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Every Nation gets the government it deserves.
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It can be wire fraud however, as it crossed state lines.
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re: came up with the phrase independently
Also I really wonder about the BOT idea. The phrase was in the image so HBO would have to be OCRing every image looking for trademarked phrases.
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i believe the father is quoted as saying:
_she decided to title it 'Winter is Coming.'_[ link to this | view in chronology ]
Next on the list of people to be sued...
...is George R. R. Martin.
He uses that phrase extensively in his books.
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Winter Is Coming
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Lawsuits are coming.
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Shouldn't George R R Martin own the trademark?
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Is it really from HBO?
"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy:"
Note that it says, in response to PAST complaints. Is it possible that Redbubble looked at some previous complaints from HBO about other works (which may or may not have been infringing), and said to itself, we'll be proactive and just take down everything with that title?
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Re: Is it really from HBO?
,,, and that's not a problem too?
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I mean, the problem lies partially with Redbubble anyway even if HBO did indeed issue a takedown request. They should stand up for their users, and the DMCA doesn't even apply to trademarks so I don't think they have the normal excuses. But if they did this *on their own*, that rises to a whole new level.
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I stopped uploading there a few years ago.
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WHO WAS THE DUMB FUCK WHO APPROVED THAT ONE?
That phrase is as generic as it comes. If I create a sign and post it in my front yard that says "Winter is Coming" then HBO can sue me?
That is a common generic phrase that is descriptive of a day of the season. It's like saying "spring is coming" when it really is coming. WTF?
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The problem only comes in when you try to control every use of the phrase.
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Whereas "Winter is coming" has a specific noun that is ALREADY Generic and describes one particular season where there are only 4. Just because some writer states it in a book about WINTER does not give them the right to have it trademarked at all because it will ALWAYS be about Winter no matter what way they try to spin it.
It would be like Microsoft trademarking "Windows are open" it means nothing and everything.
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(also, really like her artwork style, pretty cool...)
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Yeah, now I'm imagining a Nike sponsored suicide hotline.
But seriously, if simple three word phrases can be trademarked after prior art and defended like this, why don't we trademark some key phrases in the DMCA takedown notice and then litigate them every time they issue one?
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If they trademark "Winter is coming" can I hold them liable for all the damage done by Winter, the additional cost of heating, clearing snow and the increase in the price of produce? If, as it appears this year that winter is not coming, can snow based resorts sue them for lost profits?
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Sumer is icumen in
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Welcome to the yard where bullies make the rules. "Fuck you. you can't play here."
At least they haven't had to innovate very much. There's that money saved.
Fuck the culture ownership culture. Eat a dick.
Winter is coming. Oh, it is, it really is. You can count on it.
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