Question for the Audience
Can anybody tell me who owns the rights to Herbie, the Fat Fury? I want them. The rights, that is. Not the person. Unless it's, like, Amy Acker or something.
I've said too much.
I've said too much.
posted by Bill Reed at 3/05/2006 01:16:00 AM
6 Comments:
Last time I heard him being used was by Bob Burden, and that was, like, 10 years ago.
My best bet is that he's free and clear for you to use (that's not a legal opinion!!).
All I'm going to say is, sometime in the late 60s, I was the Fat Fury for Hallowe'en, and won second prize in a contest at the Stanley-Warner movie theatre in La Mirada, CA. No one knew who the hell I was supposed to be, but it was a great costume (Thanks, mom!)
So get in line, Brian. I was Herbie before Herbie was cool.
and to Brian: nothing copyrighted since the late 50s is free and clear to use -
Maybe, maybe not. I'm not a lawyer, so please don't make any important decisions based on my explanation, and please don't sue me if you're foolish enough to take my word for anything, but here's my understanding:
The 1978 copyright extension only applied to works still under copyright protection or yet to be created/published. Prior to that time, copyright in the US was for 28 years, plus one optional 28-year renewal, for a total of 56 years. Therefore, everything published prior to 1922 (which would have gone into the public domain prior to 1978) remains in the public domain. anything published prior to 1950 and not renewed remains in the public domain. Anything published prior to 1978 without proper copyright notice and never registered with the copyright office, which would have therefore fallen into the public domain, remains in the public domain. In some cases, if the copyright holder is a company that is now defunct, the work may fall into the public domain by default (see the huge catalog of fairly recent films listed as being public domain).
Secondly, copyright may be a moot point. Copyright law only protects specific works, not ideas. A particular drawing of Batman may be protected by copyright, but Batman is not. If you want to draw or write your own Batman story, it is not a copyright violation; it is infringement on a trademark.
Copyright law would prevent you from reprinting the existing Herbie stories; trademark law would prevent you from producing new ones.
Trademarks are only enforced as long as they are in use. If a company has abandoned interest in a given mark, others are free to pick it up and make use of it (see Phantom Lady/Nightveil) without worrying about infringement.
Even if Braughton owns Herbie, the trademark is most likely inactive (if the character was ever actually trademarked; that's a fairly recent development) and can be challenged. The burden would be on the trademark holder to demonstrate that the mark was in use and vigorously protected. A mark not in use (as Herbie is) is abandoned and not enforceable. A mark not vigorously defended may be deemed common usage (see "aspirin" or "nylon") and not enforceable.
If there's no copyright violation, the worst anyone can do is send you a "cease and desist" letter. At that point you either stop publishing or prepare for a fight. Who knows? The other guy might blink.
Sorry, I missed your reply, Steven! And in the ensuing time, Jim basically said what I was going to say, except for the fact that I did not know that Braughton had done something with Herbie recently.
Hmm. Herbie his own man, not yours. I bop you with this here lollypop if you say something else.
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