Note: I guess I was wrong here in my assertions below. Don’t miss Greg’s comment below. Can I still be eligible for the prize drawing?

Cue up the guitar riff from Warren Zevon

Somewhere, several places in the world, there are scores of people who’s job it is to scrounge the net for usage of words construed as “copyrighted”. I have now had a second event where my usage of words as a metaphor has come under the scope, and legal threats arrive by mail. Previously, it was the Ripley’s folks who suggest no one can post a web site with the phrase “Believe It or Not” — that any such usage tarnishes their austere image. So yes, last time this happened on a Maricopa web page, I just took them out of the picture (yes we succumbed to threats, but there is no gain in a long fight and it really mattered little).

This time, the knock on the door was from Publishers Clearinghouse, but it was not balloons and a giant check for me… well actually, I got an email from my colleague Eric back at my old office, who relayed that they had gotten a similar threatening letter. The offensive item was something I created for our Ocotillo Online Learning Group meetings, a flash app that we could enter the number of people in a meeting, and draw a number at random for a prize (we had people sign in on a list that was numbered 1, 2, 3, …).

You enter the number of people to choose from:

Picker1

and it flashes random numbers available until Vanna clicks the “done” button- and the wining number displayed:

Picker3

This app, a really crude Flash code job, was popular, so I posted it on the good old Maricopa Learning eXchange – http://www.mcli.dist.maricopa.edu/mlx/slip.php?item=917. The problem was I was not thinking and called it the “Prize Patrol Random Number Picker”, and my swf files were named “prize_patrol.swf”. There was no use of this term inside the actual content, just what I had referred to it.

So apparently, one must not use the phrase “Prize Patrol” for any public purposes, less ye be sued by hungry lawyers. My colleague asked if they should remove it, and I replied there was no real reason, just go in and change the names to protect the innocent. Now it is simply called “Random Number Picker”.

So I guess the big Clearinghouse has stomped successfully on a school, and their name is no longer brought down to the sewers by use among a few teachers and educators.

“Send me lawyers, guns and money….”, I’ll take 2 out of 3.

The post "Lawyers, Guns, and Websites" was originally pulled charred and crispy from a smoky charred oven at CogDogBlog (http://cogdogblog.com/2007/01/lawyers-guns-and-websites/) on January 5, 2007.

8 Comments

  • Alan–

    You’re confusing copyright and trademarks (or maybe Publisher’s Clearinghouse is; I don’t know).

    Copyright covers “original works of authorship.” It doesn’t cover things like names, phrases, or slogans. Publisher’s Clearinghouse can’t own a copyright over “Prize Patrol,” but they can own a trademark on that phrase. Names, phrases, slogans, or images used to identify a product or company (or service) are protected by a trademark (or servicemark).

    Trademarks and copyrights differ in other ways. Copyrights are assigned automatically upon creation of the work and does not require registration. The threshold for attaining a trademark is much higher. More pertinent to your situation: copyrights do not have to be enforced to maintain their legitimacy, but trademark owners are required to actively protect their marks or the owner can lose the trademark. Hence Publisher Clearinghouse’s cease and desist for every instance of “Prize Patrol” they can find.

    What happens if they lose the trademark? Well, for example, “aspirin” used to be a trademark of the Bayer Co., but they didn’t enforce it and lost the right to it. Now there are all sorts of aspirin. (Interestingly, outside the US they maintained their trademark, so in other countries you can only buy “Aspirin” from Bayer! All other forms are referred to as ASA, an abbreviation for the active ingredient, I think.) Other companies are fighting ongoing battles to maintain control over trademarks that are quickly slipping out of their control and become generic terms, e.g. Kleenex, Xerox, Jello, Band-Aid, Rollerblade, etc.

  • Gulp…. I sit corrected and ought just shut up.

    Thanks Greg. I’ll think more closely before reaching for a cute phrase metaphor.

  • Does this mean the grant I just got called “…..Reading Prize Patrol” may result in a visit from lawyers? Oh snap! Now I need a new name…

  • Cathy, Obviously I am the wrong person to provide an answer ;-)

    It took them a few years to catch up with me, but if I were you, I’d avoid the hassle by finding another clever name. this means,a s bloggers, educators, we ought to avoid any use of pop culture or commercial phrases and Speak Only In Plan Bland Language That is PC Everywhere.

    Maybe Reading Prize Bazaar? Reading Prize Surprise? Reading Prize for Sharp Eyes?

    And of course, some company out there might have a patent pending on the concept of “reading” !

  • This is one of those great “learn something every day” conversations, and the beauty of the blog . . . comments to the rescue. Thanks Alan AND Greg.

    Oh and ASA=acetylsalicylic acid

  • Dave F.

    Just concurring with Greg. (ASA is for acetylsalicylic acid)

    In the U.S., you obtain copyright when you “fix” your expression of an original idea — e.g., save the file, type the novel, paint the portrait. You can (and often should) register your work with the Copyright Office (good overview, FAQ, etc. there); registration can give you extra remedy in the event of infringement.

    You can’t copyright “titles, names, short phrases, and slogans” (hence the trademark or the patent route), nor ideas, nor facts.

    Some other lapsed trademarks: cellophane, escalator, linoleum, trampoline, zipper. Trademark protection explains why companies owning them are so persnickety about saying things like “Scotch brand cellophane tape.”

  • windygap

    Seems like trying to control vernacular is a lost cause and a sad statement to our lawsuit happy culture. Thank you though Alan for suggesting a rename because I don’t know what we’d do without your prize patrol! Did I say Prize Patrol? I’ll be expecting my letter any day now!

  • Jen – I never made such a thing called “Prize Patrol”. Nope.Never.