back to article HBO slaps takedown demand on 13-year-old girl's painting because it used 'Winter is coming'

It turns out King Joffrey isn't the biggest scumbag at HBO after all. A father says lawyers at the cable TV network demanded his 13-year-old daughter's artwork be taken off the internet after she drew a lovely picture titled "winter is coming" and posted the image to arts'n'craft website RedBubble. "My daughter, who happens …

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overhaul?

Start by overhauling DMCA, continue by keelhauling HBO.

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Anonymous Coward

Re: overhaul?

Start by overhauling DMCA, continue by keelhauling HBO.

Repealing DMCA.

Hey there's something useful Trump could do.

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Devil

Re: overhaul?

This has nothing to do with DMCA, it is plain old good trademark law and the idiotic "use it or lose" clause in it. That clause is long overdue for clarification and relaxation.

Aso, how could one have trademark or copyright on "Winter is Coming" beggars belief.

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LDS
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Re: overhaul?

Didn't the New England Patriots trademark the 'Do your job' phrase? It looks to be a problem of companies with too much money, lawyers, and morons at the helm.

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Anonymous Coward

Re: overhaul?

I recall vaguely there were penalties promised for abuse of the DMCA - how about enforcing that harshly? As far as I know "Winter is coming" has prior use probably as long as we've been naming the seasons. For a start. there will be a godawful amount of peasants to sue who must have interrupted their relentless ploughing of the muddy earth by looking up at the sky and utter that very phrase.

(which somehow reminds me of the "bring out yer dead" scene in Monty Python's Holy Grail :) ).

This deserves very harsh and exceptionally costly consequences. And I'm going to keep a record of the name of the legal idiot who saw fit to undersign this lunacy.

F*ckwits.

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Re: overhaul?

"HBO owns US trademarks on a line repeatedly used "

What????

especially if that line is well known phrase

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Re: overhaul?

When i read the headline I thought "Winter is Coming" must be the title of a new film, and that would still be a stupid phrase to try and copyright.

But its just a line in that stupid Thrones thing????

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Re: overhaul?

"Start by overhauling DMCA" - not necessary for this case at all. This website

http://www.lexology.com/library/detail.aspx?g=13f9814f-b56e-4314-8e1b-95215ce60a6d

explains why HBO would be in legal trouble if they tried to use the US DMCA to stop a trademark infringement. Because DMCA is for _copyright infringement_ only. (Headline: Using a DMCA takedown notice to assert a trademark claim may lead to section 512(f) liability).

Don't blame the DMCA for idiots trying to use it without understanding it. Similar to Lexmark which tried to stop competitors creating ink cartridges using the DMCA who were told that the better read the and understand bloody thing before they try to use it to sue someone.

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Anonymous Coward

Re: overhaul?

This website

http://www.lexology.com/library/detail.aspx?g=13f9814f-b56e-4314-8e1b-95215ce60a6d

explains why HBO would be in legal trouble if they tried to use the US DMCA to stop a trademark infringement. Because DMCA is for _copyright infringement_ only. (Headline: Using a DMCA takedown notice to assert a trademark claim may lead to section 512(f) liability).

Well fine, but they did anyway and were successful. This is the problem with the DMCA and far too complex legal crud: it's enough to scare people, which is all they need. A legal system which can be abused by those with the largest wallets without any noticeable consequences does not provide justice, and that's exactly what is happening.

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Re: overhaul?

"Aso, how could one have trademark or copyright on "Winter is Coming" beggars belief."

It's not a problem unique to the USA. The UK Olympic(TM) Committee trademarked lots of words related to The Olympics(TM) and did a heavy handed clamp down on any use of "their" trademarks. Hence poets were stopped from using the words "Olympic(TM)" or "gold(TM)" in their works and the poor owner of the Olympic café was told to take down his sign.

It seems insanity that the trade mark process permits organisations to trademark words and phrases in common usage.

Presumably this Wikipedia page infringes copyright as does this movie. Those naughty, naughty Americans infringed copyright when they launched a cyber attack on Iran and should be subject to their own DMCA slapdown.

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Boffin

@Voland Re: overhaul?

Absolutely correct.

Think of Kleenex.

I wonder how you could overhaul the law though.

Commercial vs Non Commercial use?

Not allow phrases to be trade marked?

e.g. "Where's the beef?" Should Wendy's be allowed to trade mark the phrase that they made popular from one of their commercials back in the 80's? (I think that they did)

Or Ohio State University changing their name to The Ohio State University so that they could trademark the name to protect their brand from T-Shirt makers back in the late 80's.

I am showing my age... ;-) The point is that I don't know how they can fix the TM laws. I mean its easier to fix the patent laws... e.g. invalidate software patents or 'business process patents' (e.g. shopping carts) is actually easier. Especially now that Sen. Reid is out of Congress.

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Re: overhaul?

"This has nothing to do with DMCA, it is plain old good trademark law and the idiotic "use it or lose" clause in it. That clause is long overdue for clarification and relaxation.

Aso, how could one have trademark or copyright on "Winter is Coming" beggars belief."

It's not even a problem with trademark law or the "use it or lose it" clause, and there's really nothing wrong with trademarking a phrase such as "winter is coming" (copyrighting it would be an entirely different matter). Trademarks apply only to specific commercial uses. Things like Cadbury's trademark on the colour purple are often brought up as examples of ridiculous trademarks, but in reality that trademark is only for the specific shade of purple when used on a chocolate bar. If you make a chocolate bar that looks too much like a Cadbury's one, you'll be in trouble. If you make any other product that colour - a car, hat, book, whatever - there's nothing Cadbury's can do about it, nor would there be any reason for them to want to (although there can be some grey areas if, for example, some other food is involved that isn't explicitly a chocolate bar but could be seen as in competition with them).

As the article notes:

"HBO's trademark covers clothing, mugs, drinking glasses, hats, bags, mouse pads and similar tat."

That means that not only is random non-commercial artwork not covered at all, but neither are many commercial products. Someone could advertise a car using the phrase, and there would be absolutely nothing HBO could do about it.

Basically, the problem here is no the DMCA, it's not trademark law, it's not any specific clause within trademark law, and it's nothing to do with the generally problematic state of intellectual property law. The problem is entirely that HBO are being arseholes.

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Re: overhaul?

"This has nothing to do with DMCA, it is plain old good trademark law and the idiotic "use it or lose" clause in it. "

May have nothing to do with the DMCA, but everything to do with shitty behaviour being allowed because it's digital.

Imagine the outcry if schools were harassed by companies with removal notices over the students paintings merely 'cause one had a title they thought they owned....

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Re: overhaul?

That issue is more complicated than your posting suggests. Various words and symbols relating to the Olympics are subject to wide protection in addition to any registered trade marks because of the 1995 Olympic Symols Protection Act (http://www.legislation.gov.uk/ukpga/1995/32/enacted). The specific Regulations (the version for England can be found here: http://www.legislation.gov.uk/uksi/2011/2898/contents/made) brought in for the 2012 London Games merely added extra details to the existing measures. The UK legislation is a reflection of obligations the country faces as a consequence of various international treaties.

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Re: overhaul?

"Didn't the New England Patriots trademark the 'Do your job' phrase?"

So you can't say "Hey, gritters; do your job, winter is coming"?

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RDW

Re: overhaul?

The Night is Dark and Full of Lawyers.

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Re: overhaul?

If you make a chocolate bar that looks too much like a Cadbury's one, you'll be in trouble.

I think this shows where the problem lies. The Cadbury's trademark applies to a fairly narrow set of products, whereas the HBO one covers "clothing, mugs, drinking glasses, hats, bags, mouse pads and similar tat" *. The HBO trademark applies to a commonly-used sentence on a wide group of products that often carry messages.

If I sell a chocolate bar in purple foil, then it's reasonable to claim that it's counterfeit Cadbury's. If I sell a hat with "Winter is coming" on it, but no knights in armour and women with their tits out **, then it's absurd to suggest I'm passing it off as an HBO hat.

* I suppose it's too much to hope that the registration actually uses the phrase "similar tat".

** I'm afraid my knowledge of Game of Thrones is entirely second-hand.

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Re: ** I'm afraid my knowledge of Game of Thrones is entirely second-hand.

A bit like Jaime Lannister then.

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Well known phrase?

I don't think that "winter is coming" is a "well known phrase". It is a trite observation. Winter is always coming, or it's here, or it's going. But it's not a famous proverb and I don't think it's a quotation and I don't think it's said unless someone sees you planting primroses in November. Which is what you're supposed to do for all that I know.

Nike trademarked "Just Do It", which is trite plus, but people are still allowed to say it.

I'm not a lawyer, but trademarks exist only in a context. So, your trademark can be a cock (Le Coq Sportif) while someone else's is (Kellogg corn flakes). The duplication doesn't lead to confusion.

In this young artist's case, I will suggest "When I am a cold woman I shall wear purple".

I am not sure about the hair but this comes to mind from the late Gerry & Sylvia Anderson.

http://www.thelivingmoon.com/49ufo_files/03files2/Sci_Fi_Girls_UFO.html

"never explained, never alluded to"

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Anonymous Coward

Re: overhaul?

"how could one have trademark or copyright on "Winter is Coming" "

Exactly.

Who is the obvious moron who approved the copyrighting of and everyday phrase?

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Headmaster

Trademark <> Copyright

I'm going to start handing out punishment exercises now. Everyone here talking about copyright write out;

A trademark is not a copyright, they are two entirely different things.

100 times and return it me Monday morning.

If you don't know why they are entirely different things, then you do not understand trademarks or copyrights. Stop commenting on them until you do.

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JLV
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Re: overhaul?

Agree. I distinctly remember the IOC hounding a long-standing local business out of its "Olympic Pizza" name, when Vancouver hosted the 2010 games.

Corporate bullying in these matters isn't very productive. There is enough tension already between "valid"* and "invalid" (above) defense of trademarks that pointlessly reminding people of the overreach of DMCA et al is liable to result in a well-deserved backlash at some point. How else do you explain single-issue parties like the Pirate Party scoring more than a few freetards' votes?

* On the other hand, some nitwit real estate promoter set up a brand-spanking-new "Olympic Realty" in Whistler just in time for the games and was all surprised when she got nailed.

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Linux

Re: overhaul?

Actually ... there is a really strong legal precedent against trademarking "Winter is Coming." There was a Linux company named "Lindows" at one point, and Microsoft challenged the company, saying the name was too close to "Windows." Lindows argued that you can't trademark a common name like "Windows." Microsoft finally settled with them out of court, and gave them something like $100 million to change their name to "Linspire."

So that painting may be worth $100 million. It's very nice!

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Facepalm

Why does nobody stop to think?

HBO meeting...

"Some girl has uploaded a picture with Winter is Coming written on it..."

"Well, we could threaten to sue her, demand the site takes down the picture... crush the girl and show the world we are serious about protecting out trademarks...

OR

We could offer to buy her picture, set up an online gallery using her picture as a centrepiece... encourage other people to come up with their own Winter is Coming artwork. Think of the positive publicity! Think of the goodwill! Imagine the love we'd get from the fans of the most popular TV show out there!

And it would cost us next to nothing!"

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Windows

Re: overhaul?

"So that painting may be worth $100 million. It's very nice!"

@elfaegis and all

Printing a few copies now to pin round College next week, and it will be featured on all my whiteboard screens. Small donation being made to Asperger's charity.

Sort of reverse Streisand effect anyone?

PS: trips round the circle (of fifths) are common in Music; Bach Well tempered clavier, Schubert Winterreise. Perhaps an Enso practice might be of interest to the youngster involved?

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Re: overhaul?

"the idiotic "use it or lose" clause in it. "

That requirement is in virtually every country's trademark laws. The idea being that you can't submarine in a trademark claim after something becomes popular.

I've seen cases where the company and lawyers who were involved were actually apologetic, but explained that if they don't enforce in every case, it has the potential to remove protection for the ones they are enforcing - and with HBO asserting trademark in all the paraphenalia associated with a show that pretty much means anything and everything.

But yes, they're tossers. They could have sent a much nicer letter in the first instance.

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Anonymous Coward

Re: Why does nobody stop to think?

>And it would cost us next to nothing!

And result in zero fees for lawyers, hence why they're being dicks about it.

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Mushroom

HBO: Interdimensional Time Travellers

Apparently HBO travelled back to 1925 and asked Mary Alice Jones to grant them the exclusive rights to the title "Winter is Coming".

Although I think they may need to go back and ask Mary to do a bit of time travelling herself, so she can go back to 1862, and ask Richard Coe for the rights in the first place.

"IP" is a farce.

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Re: overhaul?

"HBO's trademark covers clothing, mugs, drinking glasses, hats, bags, mouse pads and similar tat."

That actually sees to be the sticking point in this particular instance though, because, as the article also states in the very next sentence "Redbubble is an online community of artists and a bazaar of t-shirts and bags printed on demand from artwork submitted by its users."

The question is, did HBO manage to successfully trademark the phrase for those uses in Australia where the website is based?

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Re: overhaul?

Windows ?

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Re: overhaul?

This has nothing to do with DMCA, it is plain old good trademark law and the idiotic "use it or lose" clause in it. That clause is long overdue for clarification and relaxation

Only somebody who's never discovered the joys of safe harbour in the DMCA would say something so silly.

Actually take away the safe harbour stuff and the DMCA would be a reasonably functional piece of copyright legislation. It'd still excessively favour copyright holders but at the same time at least people could make it work.

Making bullshit copyright claims should implicitly be viewed by the legal system as perjury and result in people being disbarred when they do it and then they might actually look at the shit they're sending out. Yes I am suggesting lawyers should lose their livelihoods for a first offence, then maybe it'd restore faith in the system and practitioners.

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Re: overhaul?

No, you can't because I own the trademark on 'Hey, gritters'

Sincerely

Gritters

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Pint

Re: Well known phrase?

In this young artist's case, I will suggest "When I am a cold woman I shall wear purple".

Obligatory Terry Pratchett reference — I like it! :-)

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Re: overhaul?

"Well fine, but they did anyway and were successful. "

For a DMCA takedown notice, you must state _under penalty of perjury_ that you are the copyright holder, or an agent of the copyright holder. The trademark owner is not the copyright holder. They just need to run into _one_ person with a lawyer friend who has a bit of spare time on their hands.

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Re: overhaul?

@Alan Brown

In this case there is no product, no commercialisation at all. There is no need or right to protect any ‘mark’. In this case there is no right to protect.

In fact the dumb shit lawyers have hurt the mark. You can now safely use it as satire on this case.

Ie. “Just look at this case what a clear sign winter is coming”.

I would love to get Ariel Winter involved with this. “Are you trademarking my sexual escapades?”

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Winter is coming.

Winter is coming.

Come and get me you twats.

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Re: Winter is coming.

Winter is coming.

Winter is coming.

Winter is coming.

Winter is coming.

Winter is coming.

Winter is coming.

A lovely piece of art from a young girl who has enough challengs in her life without arseholes like HBO adding to them.

Even worse if they are doing it to everyone who uses the phrase, boycott them and fuck them off out of it!

The boy in the film clip sounded horribly like a young Billy Hague.

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Re: Winter is coming.

Winter is coming®

FTFY

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Trollface

Re: Winter is coming. -- different for Floridians

Living in Florida we have a different vision of Winter.

http://www.seewinter.com/winter-hope/real-life-story

A strange picture of Winter is coming. :P

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Paris Hilton

Re: Winter is coming.

And in our next segment:

Channel 4 is to take action against HBO for attempting to trademark the phrase "You know nothing Jon Snow" from it's well-known GRR Martin adaptation. A Channel 4 spokesperson said that, "they are insulting our lead news anchor by implying that Mr Snow is intellectually bereft".

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Re: Winter is coming.

I've got to say before anything else, what an excellent picture it is.

So if there is any association with that show then it can only be good.

What will do "irreparable harm to the brand" is throwing their lawyer weight around and generally being a fucking arsehole about stuff.

Winter is coming

Winter is coming

Winter is coming

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Mushroom

Re: Winter is coming.

In one of my native languages, I would like to say

#include <stdio.h>

#define MICHAELMASS 0

int main(){

while (! MICHAELMASS){

printf("Winter is Coming\n\n");

printf("Come and get me, HBO!!\n");

}

return 42;

}

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Re: Winter is coming.

Who the f*ck downvotes things like this?!? Have an upvote just to balance the tally.

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spread the news of these dicks

Winter is coming

Winter is coming

Winter is coming

wouldnt it be great to get that pic to "go viral" or "trend" , or memed , complete with defiant message to HBO to go fuck themselves.

This could be the most worthwhile thing 4chan ever did.

could also be best use of a botnet

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Re: Winter is coming.

"Spring is in the air" anyone got that phrase, should I worry.

What if the kid never watched the telly prog?

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Boffin

@ m0rt Re: Winter is coming.

"Winter is coming.

Come and get me you twats."

You do realize that its not just uttering the phrase that gets you in trouble.

Its using that phrase "Winter is Coming" as a title to the artwork that got her picture taken down.

So go outside (especially if you live in the Mid West of the US) and snap a photo and title it "Winter is coming" and then post it online. Then see what happens.

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Re: Winter is coming.

Well, there is one way to get around the copyright. I'm just going to URL encode the message. Come and get me now!

%57%69%6E%74%65%72%20%69%73%20%43%6F%6D%69%6E%67

&#87;&#105;&#110;&#116;&#101;&#114;&#32;&#105;&#115;&#32;&#67;&#111;&#109;&#105;&#110;&#103;

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Re: Winter is coming.

I'm Spartacus! (providing Roman slave rebellions aren't effing copyrighted now).

HBO, I fart in your general direction.

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Spartacus is Definitely On Topic today

"I'm Spartacus! (providing Roman slave rebellions aren't effing copyrighted now)."

Kirk Douglas is 100 today

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Anonymous Coward

Re: Winter is coming.

Who the f*ck downvotes things like this?!? Have an upvote just to balance the tally.

Probably people who want it in BASIC?

:)

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