6 ms·

HBO takedown on 13-year-old girl's painting because it used 'Winter is coming'

39 points by protomyth 10y ago

Neliquat 10y ago
Another slightly ham fisted IP protection. I hate to say it, but they do have not just the right, but the duty to protect their brand. The article did not mention if any of these sites monitized, claimed copyright of uploads, etc. That is Very relevant info that seems omitted by the author of this clickbaity article.
- cableshaft 10y ago
  Yeah, but it's not like 'Winter is Coming' was a completely uncommon phrase before Game of Thrones existed, it just blew it up so that most people assume you're making a Game of Thrones reference now. What if some show took something like 'Her life is in your hands' and made it so popular that most people assume you're referencing that show when you do? Would they be able to do cease and desists because of it? By the way, add 'dude' to the above phrase and it's already a popular Big Lebowski quote.
  - Neliquat 10y ago
    Agreed, but this article neglects to mention most pertinent details while the 13yo autistic girl is bandied about to make it ok. 1. This was not HBO, but one of their many, often hyperactive IP firms. 2. IP firms are hyperactive because the law tells them if they aren't, they lose credibility in the eyes of the court in future cases. 3. The content, clearly GoT inspired, was likely posted in places that have agreements jeopardizing the ownership of said content and, yes i am stretching, copyright and trademark. Is it ham fisted? Absolutely, I opened with that. But is it expected? Is this bad journalism? Absolutely it is.
    - paulddraper 10y ago
      > This was not HBO, but one of their many, often hyperactive IP firms I don't think the distinction between the company and its employees/contractors is relevant here. If the employee/contractor consistently went against the company's wishes, they wouldn't be an employee/contractor.
    - greedo 10y ago
      At least judging by the picture itself, there's no indication the painting was inspired by GoT. The character doesn't look like any GoT characters, there's no iconic imagery, it's just a girl in purple holding a dying plant.
    - TheGrassyKnoll 10y ago
      > "3. The content, clearly GoT inspired,..." Really ? You see a GoT theme in that picture ? I don't.
    - dkonofalski 10y ago
      > 3. The content, clearly GoT inspired, was likely posted in places that have agreements jeopardizing the ownership of said content and, yes i am stretching, copyright and trademark. You're not just stretching it, you're confusing the two. The law doesn't say anything about the need to protect trademark, only copyright. Additionally, there is nothing there to indicate that the artwork ("content" as you called it) has any inspiration from GoT. It's not based on a character from the show or the book and it doesn't depict an event or scene from either.
  - deleted 10y ago
    [deleted]
- bsg75 10y ago
  "Game of Thrones" is a brand, "Winter is coming" is a sentence. This is DMCA abuse.
  - wmf 10y ago
    "a catchphrase can be trademarked, but only for the protection of its use in connection with a particular product or services. ... The mere act of speaking a catchphrase isn’t, on its own, an act of commerce, so a trademark wouldn’t cover or protect you from someone else just saying your phrase." https://www.gerbenlaw.com/blog/can-you-trademark-a-catchphrase/ https://www.gerbenlaw.com/blog/can-you-trademark-a-catchphra... HBO probably would be within their rights to trademark "winter is coming" but it's still DMCA abuse because the DMCA isn't for trademarks and this appears to be a legit use.
- mikestew 10y ago
  That is Very relevant info that seems omitted by the author of this clickbaity article. The version I see when I click the link has that information at the bottom of the article. And if a company runs around trademarking commonly-used phrases, they're still assholes for enforcing it should they choose to hide behind legalities or not. In fact, I would argue that the only reason the sentence even exists in the show is because...it's a commonly-used sentence.
- glenndebacker 10y ago
  "I hate to say it, but they do have not just the right, but the duty to protect their brand." I'm no IP lawyer but you don't need to vigorously defend trademarks (https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...). It's virtual impossible to track all infrigements to begin with. If you read the rules regarding trademark abandonments you will see that it's certainly not that black and white as "you snooze, you loose".
- kafkaesq 10y ago
  I hate to say it, but they do have not just the right, but the duty to protect their brand. They do, to some extent. But there are these things known as "discretion, "general decency" and "common sense" -- which should clearly take precedence in situations like these.
- zmix 10y ago
  Owning an ordinary sentence should not be a right, frontmost.
mitjam 10y ago
The picture is a great piece of art all by itself. The act of HBO adds only further depth and meaning, heightened by the very phrase itself. It should be printed and hung in the MoMA.
ChicagoBoy11 10y ago
If the parents choose to fight this, they will surely win and may even be rewarded with a decent settlement. The recent Lenz decision by the Supreme Court made it a lot more challenging for companies to just blanket-issue DMCA requests because it forces them to take fair use considerations in mind -- that would handle any copyright claim made against the phrase. Wrt trademark, there is absolutely no argument that could sustain the notion that somehow this girl's painting is confusing others as to the fact that it may be official GoT material. Sadly, this is an unfortunate collective action problem. I understand that it is too much of a hassle and could be too costly for that single family to try to fight this on their own, so in 99.9% of these cases these companies just win by default. But a huge reason why the resort to those strategies is the fact that they count on people not taking them to task in the first place. I have no good answer for this, though.
cestith 10y ago
IANAL, but the last time I checked The 'C' in DMCA didn't come from it being the 'Digital Millennium Trademark Act'. Also, I fail to see the likely misidentification of this merchandise in the market, especially considering it wasn't for offer in the market.
disposablezero 10y ago
Donald Trump-level DMCA takedowns on Xerox-level pop culture lexicon material. I call bullshit.

39 points by protomyth 10y ago

Another slightly ham fisted IP protection. I hate to say it, but they do have not just the right, but the duty to protect their brand. The article did not mention if any of these sites monitized, claimed copyright of uploads, etc. That is Very relevant info that seems omitted by the author of this clickbaity article.

cableshaft 10y ago
Yeah, but it's not like 'Winter is Coming' was a completely uncommon phrase before Game of Thrones existed, it just blew it up so that most people assume you're making a Game of Thrones reference now. What if some show took something like 'Her life is in your hands' and made it so popular that most people assume you're referencing that show when you do? Would they be able to do cease and desists because of it? By the way, add 'dude' to the above phrase and it's already a popular Big Lebowski quote.
- Neliquat 10y ago
  Agreed, but this article neglects to mention most pertinent details while the 13yo autistic girl is bandied about to make it ok. 1. This was not HBO, but one of their many, often hyperactive IP firms. 2. IP firms are hyperactive because the law tells them if they aren't, they lose credibility in the eyes of the court in future cases. 3. The content, clearly GoT inspired, was likely posted in places that have agreements jeopardizing the ownership of said content and, yes i am stretching, copyright and trademark. Is it ham fisted? Absolutely, I opened with that. But is it expected? Is this bad journalism? Absolutely it is.
  - paulddraper 10y ago
    > This was not HBO, but one of their many, often hyperactive IP firms I don't think the distinction between the company and its employees/contractors is relevant here. If the employee/contractor consistently went against the company's wishes, they wouldn't be an employee/contractor.
  - greedo 10y ago
    At least judging by the picture itself, there's no indication the painting was inspired by GoT. The character doesn't look like any GoT characters, there's no iconic imagery, it's just a girl in purple holding a dying plant.
  - TheGrassyKnoll 10y ago
    > "3. The content, clearly GoT inspired,..." Really ? You see a GoT theme in that picture ? I don't.
  - dkonofalski 10y ago
    > 3. The content, clearly GoT inspired, was likely posted in places that have agreements jeopardizing the ownership of said content and, yes i am stretching, copyright and trademark. You're not just stretching it, you're confusing the two. The law doesn't say anything about the need to protect trademark, only copyright. Additionally, there is nothing there to indicate that the artwork ("content" as you called it) has any inspiration from GoT. It's not based on a character from the show or the book and it doesn't depict an event or scene from either.
- deleted 10y ago
  [deleted]
bsg75 10y ago
"Game of Thrones" is a brand, "Winter is coming" is a sentence. This is DMCA abuse.
- wmf 10y ago
  "a catchphrase can be trademarked, but only for the protection of its use in connection with a particular product or services. ... The mere act of speaking a catchphrase isn’t, on its own, an act of commerce, so a trademark wouldn’t cover or protect you from someone else just saying your phrase." https://www.gerbenlaw.com/blog/can-you-trademark-a-catchphrase/ https://www.gerbenlaw.com/blog/can-you-trademark-a-catchphra... HBO probably would be within their rights to trademark "winter is coming" but it's still DMCA abuse because the DMCA isn't for trademarks and this appears to be a legit use.
mikestew 10y ago
That is Very relevant info that seems omitted by the author of this clickbaity article. The version I see when I click the link has that information at the bottom of the article. And if a company runs around trademarking commonly-used phrases, they're still assholes for enforcing it should they choose to hide behind legalities or not. In fact, I would argue that the only reason the sentence even exists in the show is because...it's a commonly-used sentence.
glenndebacker 10y ago
"I hate to say it, but they do have not just the right, but the duty to protect their brand." I'm no IP lawyer but you don't need to vigorously defend trademarks (https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...). It's virtual impossible to track all infrigements to begin with. If you read the rules regarding trademark abandonments you will see that it's certainly not that black and white as "you snooze, you loose".
kafkaesq 10y ago
I hate to say it, but they do have not just the right, but the duty to protect their brand. They do, to some extent. But there are these things known as "discretion, "general decency" and "common sense" -- which should clearly take precedence in situations like these.
zmix 10y ago
Owning an ordinary sentence should not be a right, frontmost.

mitjam 10y ago

The picture is a great piece of art all by itself. The act of HBO adds only further depth and meaning, heightened by the very phrase itself. It should be printed and hung in the MoMA.

ChicagoBoy11 10y ago

If the parents choose to fight this, they will surely win and may even be rewarded with a decent settlement. The recent Lenz decision by the Supreme Court made it a lot more challenging for companies to just blanket-issue DMCA requests because it forces them to take fair use considerations in mind -- that would handle any copyright claim made against the phrase. Wrt trademark, there is absolutely no argument that could sustain the notion that somehow this girl's painting is confusing others as to the fact that it may be official GoT material. Sadly, this is an unfortunate collective action problem. I understand that it is too much of a hassle and could be too costly for that single family to try to fight this on their own, so in 99.9% of these cases these companies just win by default. But a huge reason why the resort to those strategies is the fact that they count on people not taking them to task in the first place. I have no good answer for this, though.

cestith 10y ago

IANAL, but the last time I checked The 'C' in DMCA didn't come from it being the 'Digital Millennium Trademark Act'. Also, I fail to see the likely misidentification of this merchandise in the market, especially considering it wasn't for offer in the market.

disposablezero 10y ago

Donald Trump-level DMCA takedowns on Xerox-level pop culture lexicon material. I call bullshit.