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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  1. disgruntled yank Silver badge

    overhaul?

    Start by overhauling DMCA, continue by keelhauling HBO.

    1. Anonymous Coward
      Anonymous Coward

      Re: overhaul?

      Start by overhauling DMCA, continue by keelhauling HBO.

      Repealing DMCA.

      Hey there's something useful Trump could do.

    2. Voland's right hand Silver badge
      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.

      1. LDS Silver badge

        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.

        1. Anonymous Blowhard

          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"?

          1. Natalie Gritpants

            Re: overhaul?

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

            Sincerely

            Gritters

      2. Prst. V.Jeltz Silver badge

        Re: overhaul?

        "HBO owns US trademarks on a line repeatedly used "

        What????

        especially if that line is well known phrase

        1. RDW

          Re: overhaul?

          The Night is Dark and Full of Lawyers.

        2. Robert Carnegie Silver badge

          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"

          1. Robert Baker
            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! :-)

      3. Lotaresco Silver badge

        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.

        1. Andy J

          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.

          1. JLV Silver badge

            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.

      4. Ian Michael Gumby Silver badge
        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.

      5. Cuddles Silver badge

        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.

        1. Kubla Cant Silver badge

          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.

          1. I am the liquor

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

            A bit like Jaime Lannister then.

        2. John Brown (no body) Silver badge

          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?

        3. streaky Silver badge

          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.

      6. Teiwaz Silver badge

        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....

      7. Anonymous Coward
        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?

        1. Just Enough
          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.

      8. elfaegis
        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!

        1. keithpeter
          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?

      9. Alan Brown Silver badge

        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.

        1. Truckle The Uncivil

          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?”

      10. Truckle The Uncivil

        Re: overhaul?

        Windows ?

    3. Anonymous Coward
      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.

    4. Prst. V.Jeltz Silver badge

      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????

    5. gnasher729 Silver badge

      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.

      1. Anonymous Coward
        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.

        1. gnasher729 Silver badge

          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.

    6. You aint sin me, roit
      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!"

      1. Anonymous Coward
        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.

    7. Oh Homer Silver badge
      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.

  2. m0rt Silver badge

    Winter is coming.

    Winter is coming.

    Come and get me you twats.

    1. Chris G Silver badge

      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.

      1. Steven Guenther
        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

    2. MotionCompensation

      Re: Winter is coming.

      Winter is coming®

      FTFY

    3. macjules Silver badge
      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".

      1. werdsmith Silver badge

        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

        1. Michael H.F. Wilkinson Silver badge
          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;

          }

          1. Lord Elpuss Silver badge

            Re: Winter is coming.

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

            1. Anonymous Coward
              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?

              :)

              1. This post has been deleted by its author

            2. Wilseus
              Linux

              Re: Winter is coming.

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

              Probably people who are appalled by the bad layout of that C code!

          2. Wade Burchette

            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;

          3. Anonymous Coward
            Anonymous Coward

            Re: Winter is coming.

            For the old 'uns. In the only sodding language I could ever program in, ZX B.A.S.I.C

            5 Poke 23613,Peek 23730-5

            10 Print "Winter is coming";

            20 cls

            30 Goto 10

            Fuck HBO.

        2. Prst. V.Jeltz Silver badge

          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

          1. JLV Silver badge
            Trollface

            Re: spread the news of these dicks

            Hmmm....Thinking.... thinking... How to protest? Ah, yes, Femen!

            Generously-bosomed young ladies modelling T-shirts

            Winter is coming

            Come and take this off, HBO!

            That means they are already infringing on the TnA in GoT, so clear need for a takedownoff. Need to find the dragon angle somehow.

            p.s. I don't know about HBO as a whole, but the lawyers who made this stupid call really, really, need to find themselves a purpose in life other than stereotyping the joke about 5000 lawyers at the bottom of the sea.

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