Subject: Re: Open Content woes
From: Richard Stallman <rms@gnu.org>
Date: Wed, 29 Sep 1999 02:25:46 -0600 (MDT)

I asked our law professor advisor about use of logos in a book.
Here's the question:

  Is he right about logos?  Is it illegal to even show a logo in a book
  without permission?  Is it infringement to print a picture of a Ford
  car if the Ford logo is showing?  If so, is that because of trademark,
  or copyright?

Here is his response:

    Showing the trademark for commercial purposes violates the publicity
    right which belongs to the holder of the mark.  If you were to have a
    book in which, for example, you discuss a particular logo as an
    instance of good graphic design, with an illustration, and
    acknowledged the ownership but chose to publish without permission,
    you could probably win any resulting trademark lawsuit.  If you put it
    on the book cover, however, you would certainly lose.

    That's a trademark question, not a copyright issue, and the standard
    is likelihood of confusion.

[This means that statements such as "This is Red Hat's logo--nothing
to do with us, of course" make a big difference.]

				 Now a "logo" probably means what the PTO
    calls a "words and design" mark, which can also be copyrighted, as a
    words-only mark cannot.  Then copyright rules also apply, and in the
    ordinary way: copying and distribution without permission infringes.
    Context affects damages, not liability.

I asked him about this copyright issue a few days ago,
and (as I reported) he said showing an application's
window decorations in a manual ought to be fair use.

Perhaps ORA wants to ask for permission just to feel more safe.  If it
is just to feel more safe, maybe the details don't need to matter.
But if you want the permission to be really legally significant, it
ought to apply to what ORA plans to do and what ORA wants to license
others to do.  If the permission is based on seeing the complete text
of the book, and would be voided by any change, then it is not
permission covering a modified version of the book.  Thus, it would
not cover publication under any license that permits people to publish
modified versions.

On the other hand, if the permission is very broad, it probably
applies regardless of what license ORA uses for the book.
(Though I have not yet asked our lawyer this specific question.)


Someone asked whether licensing a trademark for use in a specific free
book could mean forfeiting it.  I recently asked our lawyer about a
similar situation, and he said that licensing X does not imply
licensing Y.  Licensing the use in screen shots in a manual would
not imply licensing any other use of the trademark.