It’s a tried and true principle that once a work enters the public domain, absent an act of Congress, it stays there. It can be preserved, shared and reused freely, without even a need to attribute to the original author. Archives of public domain works are extremely valuable to the public, a treasure trove of entertainment and source materials. That is one reason the Internet Archive, a nonprofit digital library dedicated to expanding access to knowledge and culture, has made preserving and facilitating access to public domain materials a central part of its mission.
Those materials include old televisions shows, such as a popular 1950s show called “You Asked For It.” You can watch the show via the Archive site, and/or use footage from it to create new works: just what the public domain is supposed to enable.
Or at least that’s how things will stand unless an obscure company that claims to own a trademark in the term “You Asked For It” in connection with licensing televisions shows, memorabilia, etc. gets its way. The company, Sandy Frank Film Syndication, has hit the Archive with ridiculous legal threats based not on copyrights, but rather trademark rights. The company initially demanded that the Archive takedown not just links to the television show (which it admits is in the public domain) but also links to remix videos that use footage from the show, a series of sermons that happen to use the term “you asked for it” in the title, and a reference to a record that also used the term. When the Archive pushed back, SFFS withdrew its complaints about colloquial uses but renewed its demand regarding the other materials and insisted that even using the term in a Internet search could violate trademark law.
The claims are, of course, ludicrous, as we explained in some detail in a letter we sent to SFFS yesterday. Leaving aside the fact that the uses in question are entirely noncommercial and there is no likelihood of consumer confusion, well-established Supreme Court precedent makes clear that you cannot use trademark to accomplish an end-run around the Copyright Act. In Dastar v. 20th Century, a 2003 case involving another public domain television show, the Court affirmed that
The rights of a patentee or copyright holder are part of a “carefully crafted bargain,” . . . under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution.
We assume that SFFS will have the good sense to walk away from this fight. But we fear this is not the last time we will hear of a trademark holder attempting to invade the public domain. A few years from now – absent another foolish act of Congress (and not one that they could get away with without a massive fight) – works locked up when the copyright term was extended by 20 years will finally start to enter the public domain. When that happens, we can expect former copyright owners will be scrambling to find new ways to keep the cultural commons from expanding.
EFF will be there to fight back, just as we are today, but we’ll need your help. Too often, the fight won’t happen because mark owners will target “weak link” service providers who lack the time and inclination to assess the validity of the claims. To help secure the public domain now, service providers should adopt speech-friendly procedures, such as trademark takedown policies that include an easy-to-use counter-notice process. Users, for their part, should urge their providers to adopt those procedures – or switch to those who will – and continue to speak out against trademark bullies.