Sunday, December 11, 2022

Bad Faith

The intellectual-property-related legal blogs have been exceedingly dry these last two weeks, so it took a lot of reading to find a nugget. Bad Faith might be it.

Insurance-law blogger Stacy Manobianca offers a great definition of bad faith for the Saxe Doernberger & Vita, P.C. firm.

For the EU and UK centered, intellectual property law firm Murgitroyd, legal blogger Sharon Kirby discusses the anonymity-loving artist Banksy, and the fascinating question of whether [and this is my own characterization] someone who says that "copyright is for losers" can, in good faith, prevent others from exploiting brilliant street art in a dog-in-the-mangerish sort of way. Again, those are my phrases. And there is a legal fig leaf for the dog.

Sharon Kirby writes:

"Creative works are generally protected by copyright. However, the Scarlet Pimpernel of the art world has — on more than one occasion — made plain his position that ‘copyright is for losers’. Certainly, aside from an anarchic stance, Banksy’s ability to use copyright as an enforcement measure would most likely be scuppered by his desire to have his true identity remain hidden."

Describing Banksy as "the Scarlet Pimpernel of the art world" is a wonderful metaphor. It particularly caught my attention because I'm working on a Scarlet Pimpernel-ish series in my alien djinn worlds

Apparently, one cannot protect a copyrighted work in the courts of law if one wishes to retain ones anonymity. Therefore, Banksy is alleged to have trademarked some of his best works instead, but there is a question of whether one can hold a trademark when one does not intend to use the trademark for the goods and services.

One cannot "trademark" a phrase or a word or a design with the sole purpose of stopping anyone else from using it. The trademark must be used to identify and protect a brand, a series, or goods and services closely associated with the expression, and it must be used. That is why I put  SPACE SNARK™  below my name on every blog post I write.

Back to Banksy. The Murgitroyd article is well written and an easy and edifying read. It seems that there is a bare (or not) minimum that a trademark owner can do in order to prevail against opportunistic [my opinion] third parties... even if the author or artist has said offered quite "piratical" opinions about copyright and property rights.

For more enlightenment on the "pirate-speak", read the article.

All the best,

Rowena Cherry 



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