FukDatShhh.CoM

Everyone needs to see this!!!!

Hey, does T-Mobile really own magenta? I was just about to redesign my blog, and that was going to be the main color.

Really? Maybe T-Mo should sue you.

Come on, I’ve been hearing this everywhere. 1265 Diggs can’t be wrong.

Well, they’re not wrong, they’re just less than right. T-Mobile’s disclaimers certainly do say that “the magenta color” is a T-Mobile trademark.

So there you go! That’s so stupid! The system is broken! Everyone is corrupt! How can a corporation own a color?! I’ve already skipped down and begun flaming!

Chill out, Sparky. T-Mobile doesn’t “own” anything here, least of all a color. That’s the part everyone seems to have missed. T-Mobile has what appears to be a German trademark on that specific magenta color (RAL 4010, specifically) as it relates to their branding, but that doesn’t really affect the average consumer.

Besides, this isn’t some radical new development. Lot of other companies have registered color trademarks — Owens-Corning has a trademark on the use of pink for insulation, Tiffany & Co. has a trademark on that certain blue color it uses for jewelry boxes, and UPS has a trademark on brown. Interesting you haven’t seen UPS suing Microsoft over that itty-bitty Zune thing, no?

No, but come on, I heard T-Mo’s been suing everyone that dares to use magenta.

Really? From everything we can find, it’s only sued two companies over the use of RAL 4010, and both were in Germany. One of them was a competing cell carrier, even. Are you sure you’re not getting over-excited, here?

Don’t get too smug, lawyer-boy. You might get some on your spats.

Fine. Let’s say, hypothetically, that you’re using magenta on your website and T-Mobile decides to drag you into court. In order to prove that you’re infringing its magenta trademark, it’s going to have to demonstrate that:

• You’re using “their” magenta
• You’re using it to sell, distribute, or advertise a telecommunications product
• The way you’re using it is likely to deceive or confuse consumers into thinking T-Mobile is somehow involved.

Now, to analyze that last part, a court would balance out several factors, including:

• The strength of T-Mobile’s magenta trademark — how distinctive it is
• The similarity of your use to T-Mobile’s use
• The similarity of your products
• Whether or not people are actually confused
• Whether or not you’re straight-up trying to trick people into thinking you’re affiliated with T-Mobile
• The sophistication of consumers in the telecommunications market

So in order to “own” magenta and enforce its trademark against you, T-Mobile would basically have to prove that you’re advertising or selling a telecommunications service with a super similar shade of magenta that everyone recognizes as being T-Mobile’s in a way that makes people think T-Mobile is affiliated with you. You’re not doing that, are you?

Um, no.

So what’s the problem, then?

That still doesn’t mean I think it’s right. I mean, it’s just a color. Why is that disclaimer even there if T-Mobile isn’t trying to bully people?

Or it’s trying to put other companies on notice that T-Mobile considers the magenta color a part of their brand, to avoid further legal complication.

Look, let’s start over here. Trademarks aren’t easy to get, and they’re not necessarily easy to keep — there are a lot of rules to follow for a company to get and maintain a mark, but the main idea is that consumers shouldn’t be confused about where their purchases are coming from. That’s really it. If T-Mobile is of the opinion that it’s done such a good job associating itself with magenta that any other use of magenta would confuse consumers, it can certainly try to sue its way to glory, but that doesn’t seem to be the case here — it’s just covering its ass, because that’s what gigantic companies do in small-print disclaimers. Not as much fun to rail against, but you can probably find something else, no?

Probably.

Of course you can. Now go de-magenta everything, Randy Rebel. It looks hideous around here.

Why’re you doing a KYR on fair use? It’s all right there in the name, isn’t it?

If only it were that simple. Like so many other legal terms, the hardest thing about understanding fair use isn’t how it works, but rather that it has such an appealingly simple name — one that seems to invite a lot of off-the-cuff interpretation.

Well, that’s stupid. Why not just make it simple?

Because then lawyers would be out of their jobs, obviously.

That can’t be the reason.

Yes, but it’s much funnier than the real one.

Try me.

Well, even though it occasionally seems like it, judges and juries don’t just get to do things as they see fit — they have at least try and build upon the foundation of the existing law. Law works a lot like code in that way — there’s a reason it’s called the United States Code. So the words “fair use” are really just a pointer to a specific section of the Copyright Act and the case law that’s developed around it. While that might seem needlessly complicated, it means that the legal system is at least trying to enforce a consistent, rational definition of a word like “fair,” which means different things to different people.

That’s great, but what does that have to do with me? I just want to post photos on my blog, or rip CDs.

Well, although there are certain specific things, like criticism, parody, and teaching, that are specifically protected as fair use, it’s not a blanket protection against copyright infringement actions — courts evaluate fair use on a case-by-case basis. So even though you may think that your sweet parody of “Gimme More” is covered by fair use, you can’t just ignore a letter from Britney’s lawyers — you have to show how your specific use was fair under the rules.

So what are the rules?

It’s a little more complicated than this, but there are four basic things people talk about when deciding if a use is “fair”:

• The “purpose and character” of the use: Are you straight-up selling photos you found on Flickr? Or are you just reposting them and commenting on them?
• The nature of the original work: Are you just reciting facts from a non-fiction book? Or are you posting all the CGI scenes from Transformers?
• The “amount and substantiality” of the original work you’re using: Are you taking the whole photo? The most important part of the book? Or just quoting a from a scene?
• The effect on the market value of the original work: Is your use killing the value of the original? How so, and how much?

That seems complicated, but understandable.

Ah, but remember, law is code — each of those four rules is a pointer to decades of case law teasing out exactly what does and doesn’t cross the line, and how the rules work together. Just mentioning that you think your use falls under these rules doesn’t mean that your use is fair.

So how am I supposed to know what’s fair and what’s not?

Well, just keep it simple, think about the rules, and use your common sense. Are you reviewing something? You’re probably fine to use a small piece of whatever you’re reviewing, but not the whole thing. Are you making a parody? You can probably use as much of the original as it takes to establish what you’re doing. On the other hand, just lifting other people’s photos for your blog and claiming your use is fair just because you provided attribution probably isn’t going to pass muster.

I thought you said you couldn’t just figure it out from the words “fair use.”

Um.

Freakin’ lawyers.

Like I said, we’ve got to stay in business somehow — and showing fair use in a court setting is a lot different than just screaming “FAIR USE!!!!!!1111″ on a message board. But in the end, copyright law and fair use aren’t any different than all the other laws that impact your life: if you’re respectful of other people’s works and aware of the rules, chances are you’re going to be fine.

Sweet. Can I repost this whole thing on my blog?

Only in rap parody form — anything else gets the hammer.