Please consider the following from a House Committee Report in 1976
relating to the new Copyright Act:
"The Committee has considered, but chosen to defer, the possibility of
protecting the design of typefaces. A "typeface" can be defined as a
set of letter, numbers, or other symbolic characters, whose forms are
related by repeating design elements consistently applied in a
notational system and are intended to be embodied in articles whose
intrinsic utilitarian function is for use in composing text or other
cognizable combinations of characters. The Committee does not regard
the design of typeface, as thus defined, to be a copyrightable
"pictorial, graphic, or sculptural work" within the meaning of this
bill and the application of the dividing line in section 101."
House Report 94-1476 (Report of the Judiciary Committee), 3 September
1976, CR 122 (1976). Reprinted in United States Code, Congressional
and Administrative News, 94th Congress, 2nd Session, 1976 (St. Paul:
West), 5:5668-5669
This is from the Code of Federal Regulations:
"The following are examples of works not subject to copyright and
applications for registration of such works cannot be entertained:
(a) Words and short phrases such as names, titles, and slogans;
familiar symbols or designs; mere variations of typographic
ornamentation, lettering or coloring; mere listing of ingredients or
contents;
(b) Ideas, plans, methods, systems, or devices, as distinguished
from the particular manner in which they are expressed or described in a
writing;
(c) Blank forms, such as time cards, graph paper, account books,
diaries, bank checks, scorecards, address books, report forms, order
forms and the like, which are designed for recording information and do
not in themselves convey information;
(d) Works consisting entirely of information that is common property
containing no original authorship, such as, for example: Standard
calendars, height and weight charts, tape measures and rulers, schedules
of sporting events, and lists or tables taken from public documents or
other common sources.
(e) Typeface as typeface."
37 CFR 202.1(e)
I think it is thus difficult for either the guy who created the
koolbeans font or the guy who created the original "Kool Aid" font on
which koolbeans is based to have much of a copyright claim, given the
preceding authority. But assuming the owners of the original Kool Aid
font come after you (the other guy won't since he gave a freeware
license), you could argue Fair Use.
Generally speaking, if you use material in which the copyright belongs
to someone else, either through direct use or through creation of a
derivative work, you will need to either (a) obtain a license
(permission) from the copyright owner; (b) determine that the source
material is actually not "copyrighted" and is in the public domain; or
(c) determine that your use qualifies as a "fair use" under copyright
law. Any use outside these three may expose you to liability for
copyright infringement.
Fair use contemplates that you ARE infringing copyright--the doctrine
simply gives you a defense if you get sued. Basically, you are
infringing someone's copyright in any content of which you are not the
actual author that you reproduce, publicly perform or create a from
which you create a derivative work.
Under US copyright law, the Fair Use Doctrine, found at 17 U.S.C.
Section 107, holds that no permission is needed for purposes such as
criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, SUBJECT TO THE
BELOW FACTORS:
Factors:
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.
So, to answer your question, you have to first ask if your use falls
into one of the enumerated categories [criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research] AND THEN you have to apply the four factors
and see if more of the factors weigh in your favor. So, you will have
to find a way to make sure the packets fit into fair use.
The fact you are a small college helps since you might be able to
argue this is an educational use.
As to the pitcher, you could either argue copyright fair use
(discussed above) or trademark fair use. First and most obviously,
you are not selling powdered soft drink mixes. That's the first
test--are you selling a related line of goods or services by using a
confusingly similar mark? You are not. Second, could someone
reasonably believe that the KoolAid people were sponsoring your
financial aid effort because you depict a facsimile of the pitcher guy
on your posters? I think it is unlikely.
But, I could be wrong. |
