Happy New Year from Herrick’s Intellectual Property Group

December 30, 2016

To help you usher in 2017 in the right spirit, and foster apolitical conversation with family and friends, we offer these quirky trademark and copyright matters related to ubiquitous products and traditions you may have experienced this month. Inside, you’ll be entertained with a copyright dispute over an ugly Hanukkah sweater, the amazing mistake that put It’s A Wonderful Life in the public domain for nearly two decades, and the trademark history of that New Year’s Day savior, Aspirin. 

Ugly Sweaters

Ugly sweaters are not just for Christmas. In 2013, a Detroit artist named Aaron Cummins obtained a copyright registration for his whimsical “Ugly Hannukah Sweater.” Cummins was not amused when a version of the sweater featuring the name of the band Anthrax was being sold. In early 2016, Cummins sued Anthrax for copyright infringement in Michigan federal court. He didn’t pursue the case, hopefully because it was settled without too much ugliness.

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It’s a Wonderful Life

This Christmas Eve, you may have watched It’s a Wonderful Life on NBC. But did you ever wonder how the classic became so well-established in the pantheon of holiday season movies, even though it was a flop when it debuted in 1946? Could it have been an increase in attention to the film’s themes of family, love and redemption? Yes, but more likely it’s because the film lacked copyright protection for nearly two decades, which allowed broadcasters to show it for free!

At the time the film was created, copyright protection lasted for 28 years, after which it could be renewed for another 28 year period. In 1974, the company that had the original copyright failed to renew it – apparently because of a clerical mistake. As a result, the film was broadcast thousands of times from 1974 to 1993, without payment.

In 1993, copyright was regained due to a landmark Supreme Court ruling a few years earlier. In Stewart v. Abend, which involved Rear Window, the Court held that a copyright owner has the exclusive right to exploit derivative works, even if there had been conflicting agreements by prior owners of the work. Having acquired copyright in the music, the film company seized the opportunity to leverage its ownership of copyright in the underlying story on which the film was based, and began sending out notice of copyright claim letters. By then, the film was a traditional classic, so we presume the royalties resumed flowing. 

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Aspirin, the New Year’s Day Miracle

If you wake up with a hangover on New Year’s Day, you may reach for a painkiller such as acetylsalicylic acid. This extremely popular analgesic was developed by German pharmaceutical powerhouse Bayer in 1897, and marketed around the world under the trademark ASPIRIN. The United States patent expired in 1917, but the trademark was registered, and trademarks can last indefinitely if they are handled properly. 

But things did not go well for Bayer in the U.S. In 1917, the U.S. got involved in World War I and seized Bayer’s U.S. assets, including its trademarks, as enemy property. The trademarks were sold and Bayer reacquired the trademark to Aspirin in 1994. Unfortunately for Bayer, the brand name Aspirin had by then become synonymous with the product itself. Many years ago, a competitor claimed the brand name was in the public domain, and the courts agreed. As a result, aspirin is a generic term in the United States.

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© 2016 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.