Wikipedia:Images and media for deletion/2006 February 9/archive

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The 1916 Act of congress did not create any copyright interests because the Constitution specifies that copyrights may only be granted for "limited times," and the Boy Scouts of America (BSA) do not claim any copyrights, using the registered trademark (R) symbol alone in conjunction with their logo, and not the (C) symbol.

U.S. law protects the use of trademarks by nonowners for purposes of criticism and commentary. First Amendment considerations override any expressive, noncommercial use of trademarks. "The Constitution is not offended when the [Maine] antidilution statute is applied to prevent a defendant from using a trademark without permission in order to merchandise dissimilar products or services. ... The Constitution does not, however, permit the range of the antidilution statute to encompass the unauthorized use of a trademark in a noncommercial setting such as an editorial or artistic context." (emphasis added) L.L. Bean, Inc. v. Drake Pubs., Inc., 811 F.2d 26, 31, 33 (1st Cir. 1987).

Similarly, the Federal Trademark Dilution Act of 1995 does not apply to the "noncommercial use" of a famous mark. 15 U.S.C. 1125(c)(4)(B). The U.S. Supreme Court has defined "commercial speech" as "speech which ... propose[s] a commercial transaction." Virginia Pharmacy Ed. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

The only limit on this right is whether someone might think that the commentary was produced by the trademark owner, and this limit is explicity defined in reference to Boy Scouts. "[A]n author certainly would have a First Amendment right to write about the subject of the Boy Scouts and/or Girl Scouts. However, this right is diluted by trademark law insofar as that author cannot present her subject in a manner that confuses or misleads the public into believing, through the use of one or more trademarks, that those organizations have produced or sponsored the work in question." (emphasis added) Girl Scouts of the United States v. Bantam Doubleday Dell Publishing Group, Inc., 808 F. Supp. 1112 at 1121, n. 12 (S.D.N.Y. 1992.) Nobody could possibly think that this image came from the BSA.

Therefore, there are absolutely no restrictions on the use of this image. It may be used by anyone for any purpose. The {pd-self} licensing stands for the derivative work. --James S. 12:32, 9 February 2006 (UTC)

• Please do not strike my comments. — Rebelguys2 ^talk 08:08, 9 February 2006 (UTC)

Your contention that the image is based on Image:BSA Color Logo.png is false (which should be obvious because the logo is black and white.) It is traditional to strike out false statements. I am sorry that you took offense. --James S. 09:00, 9 February 2006 (UTC)

Again, simply say so. The admins are skilled people. ;) — Rebelguys2 ^talk 09:26, 9 February 2006 (UTC)

• Wikipedia:Logo states that: "Defaced logos or logo parodies should be used with care and not given undue prominence. Parodies of logos can be used in under fair use in an article about a parody site or campaign against some aspect of the operations of the company, but in an article about the company itself, a parody is less likely to be as important or likely to be fair use." This parody has been released as public domain and is used solely in user pages and templates." — Rebelguys2 ^talk 08:21, 9 February 2006 (UTC)

There is no copyright on the BSA trademark and there are no policy or guideline restrictions on the use of uncopyrighted trademarks on Wikipedia, and no restrictions on using trademarks for commentary. There can be no valid copyright on the BSA logo, because it appeared prior to 1923 See: Copyright Term Extension Act --James S. 09:00, 9 February 2006 (UTC)

However, the same source that you cited also states here that "The trademarks and logos of the Boy Scouts of America are protected by a 1916 act of Congress." Looking up the clause (36 USC Sec. 30905) in the United States Code here and here, it shows that the BSA logo is, indeed, still a registered trademark. Per the BSA's copyright and trademark site, "In other words, they must appear with any ownership symbols exactly as received, and no additional symbols are to appear in connection with them." — Rebelguys2 ^talk 09:26, 9 February 2006 (UTC)

Such trademark exclusivities apply to commercial speech but do not apply to commentary, because the U.S. Code is subordinate to the First Amendment to the Constitution. Moreover, you have repeatedly implied that the derivative image is a parody; it is not. It is a composite symbol made for purposes of commentary. Can you find any source indicating that the 1916 act has ever been applied to noncomercial commentary? --James S. 09:49, 9 February 2006 (UTC)

I referenced the 1916 act to show that the trademark is not currently in the public domain. Any use of that logo, therefore, is considered fair use. As a result, modifying that fair use image does not automatically make the result free or public domain. Wikipedia:Logos states that, "[d]efaced logos or logo parodies should be used with care and not given undue prominence." In addition, the term, "parody," is partially defined in Wikipedia policy as a "campaign against some aspect of the operations of the company" — the point of this image's commentary. Therefore, this image must be considered fair use under Wikipedia's definition of parody. However, fair use images cannot be used in templates and user pages, as it is being used now. This image, then, does not meet fair use criteria, has no encyclopedic value (UE), and would also be orphaned (OR), since it cannot be included in user and template pages. — Rebelguys2 ^talk 10:01, 9 February 2006 (UTC)

A modification of an uncopyrighted trademark is a derivative work and the property of the creator. I created the derivative, and I so I had the right to release it into the public domain. Trademark restrictions are the only restrictions on the image, and only apply to commercial speech. Your assertion that "this image must be considered fair use under Wikipedia's definition of parody" is wrong because the image is not a parody. --James S. 10:22, 9 February 2006 (UTC)

• Delete. I don't know whether this would be fair use in an article, but it isn't used in any articles. I've tagged it as such. dbenbenn | talk 08:39, 9 February 2006 (UTC)

The image can not be under copyright, as above, so I am removing the tag. --James S. 09:00, 9 February 2006 (UTC)

Please see the 1916 act of Congress I noted above. — Rebelguys2 ^talk 09:26, 9 February 2006 (UTC)

The Act creates trademark restrictions, not any copyright interest; see Girl Scouts of the United States v. Bantam Doubleday Dell Publishing Group, Inc., 808 F. Supp. 1112 at 1121, n. 12 (S.D.N.Y. 1992) above. --James S. 12:32, 9 February 2006 (UTC)

• Keep per 15 U.S.C. 1125(c)(4)(B), and L.L. Bean, Inc. v. Drake Pubs., Inc., 811 F.2d 26, 31, 33 (1st Cir. 1987) --James S. 12:32, 9 February 2006 (UTC)
• Delete per Rebelguys2. It is clear that the logo is still protected. In Wikipedia the use of images under the provisions of Fair Use is reserved only for the article namespace. -- Rune Welsh | ταλκ 12:50, 9 February 2006 (UTC)

The image is not used under any "fair use" -- it is used because there is no copyright on the image, and there are no restrictions on using trademarks in commentary, editorial, artistic, or noncommercial contexts as long as the context doesn't falsely purport to be authored by the trademark's owners. --James S. 15:58, 9 February 2006 (UTC)

Happy as long as the image doesn't find its way into the article namespace. -- Rune Welsh | ταλκ 20:24, 9 February 2006 (UTC)

• Delete per nom. It's clearly copyrighted [1]. Mike _{(T C)} 13:46, 9 February 2006 (UTC)

Also read the second sentence from the page I cited: "The 1916 act specifically gives the Boy Scouts of America the sole and exclusive right to use its "emblems, badges, descriptive and designating marks" in connection with carrying out its purposes." To me that means that the Boy Scouts have a copyright on their logos, and they are the only ones allowed to use them. Mike _{(T C)} 13:48, 9 February 2006 (UTC)

Not so, see comment by James S. above. Keep unless other grounds for deletion are presented. —Ilmari Karonen (talk) 15:16, 9 February 2006 (UTC)

The U.S. Code is subordinate to the First Amendment to the Constitution, so the image may be used in noncommercial commentary and in artistic and editorial contexts. --James S. 15:58, 9 February 2006 (UTC)

• Comment. User has created Image:Former BSA sil.JPG, striking similar to the image of the "Scout" rank found here. I'm not sure if the fleur-de-lis silhouette is unique enough to merit a CV, however. — Rebelguys2 ^talk 14:29, 9 February 2006 (UTC)