Thursday, December 31, 2009

Patent, My Ass! Five Strange But True Butt-Related Inventions

Dear Rich: I like your blog especially, the early funny stuff you used to write. How come you don't do funny stuff any more? Say no more! As a special end of the year bonus we've dug deep into the bowels of the patent office for five butt-shaking patents, all focused on the human rear-end.

 #1. Patent No. 6473908: "Garment having a buttocks cleavage revealing feature," What's buttocks cleavage? It's when a little bit of the buttocks (and cleft between them) is exposed. Some people find this type of exposure unappealing--in the U.S. it's disparagingly referred to as 'plumber's crack,' in Britain it's 'builder's bum,' and in Brazil, call it cofrinho. Even with this negative rap, apparently there are those among us who like to expose their gluteal cleft. For those folks, inventor Thomas A. Bontems created a method for affixing a strategically placed see-through material allowing for ideal butt cleavage exposure. One nice feature is that the see-through portion of the invention is not limited to a basic heart-shaped peek-a-boo cut-out; the wearer can also expose themselves through flower shaped, butterfly shaped, and football-helmet shaped windows of opportunity. (We're not sure if the football helmet is for fans or players occupying Center position). There's even a "logo" view that presumably allows for unlimited corporate licensing opportunities--for example, you can expose yourself within the Apple logo or Chevrolet "bowtie." Since inventors solve problems, one may wonder what problem Bontems' invention solves? According to the inventor, many people like to expose portions of their anatomy but they're not comfortable wearing tight fitting or low cut jeans. This invention "incorporates a revealing feature that does not detract from or govern the overall structure of the garment." In other words Bontems has leveled the playing field and liberated butt cleavage from the thin, the sexy and the good-looking. Free at last!! 
  • If You Liked This Invention You Might Also Like: Patent No. 5970516, "Article of clothing for making a patterned sunburn." This invention allows the user to swap out an interchangeable see-through portion of a bathing suit to create tanning tattoos. 
#2. Patent No. 6,012,168: "Privacy accessory for use with hospital gown" Even exhibitionists would probably like to avoid one situation of butt-cleavage exposure--the use of an old-fashioned posterior-exposing hospital gown. Laurie Hutton and Lois Histopad came up with a temporary-albeit worky solution as shown in their 1998 patent--a flap-and-strap garment that can be worn underneath the gown to guarantee "practical modesty coverage." Much as we may support the concept, this flapping backside accessory seems like a stop-gap measure. Sure enough, a better solution arrived in 2001 with Sarah Bowens' Patent No. 6,237,153, "Hospital Garment" which featured three panels one of which was an overlapping back panel. Despite the obsolescence of their invention, we support Histopad and Hutton because as lawyers, we can relate to the need for covering your ass. 
  • If You Liked This Invention You Might Also Like: Patent No. 4,028,740, "Convertible beach attire." Speaking of hiding your butt, perhaps you'd like a nice "pair of modesty panels" to cover your skimpy swimwear while walking from your car to the beach. These panels comes with a complex-looking belt and loop combo that makes you wonder why the wearer doesn't just drape a towel around the over-exposed area.
#3. Patent No. 4,151,613: "Protective device for the buttocks and hips of a person for use in skateboarding" Skateboarding is all about style and what could be more stylish than wearing a plastic and foam portable seat on your butt? Now, that should impress your boarding buds. No doubt, inventor Jhoon Rhee had the noblest intentions--to shield skateboarders from hip and butt damage--after all skateboarding injuries account for 50,000 emergency room visits per year. And since 90% of the skateboarding victims are under 15, it makes a lot of sense that kids should wear this "ass-helmet," although getting them to comply should be about as easy as getting them to clean out the septic tank. And here's some good news for manufacturers; Rhee's patent expired in 1995 so anyone can sell and use this shielding device. 
  • If You Liked This Invention You Might Also Like: Patent No. 5913405, "Ladybug (child protector)." Apparently influenced by Kafka's "Metamorphosis," inventor Francisco Bordier has designed a polyurethane bug-styled protective covering for use by children learning to walk. 
#4. Patent No. 5708986: "Undergarment having rear supports" We're afraid there's no other way to put this one. The U.S. Patent and Trademark Office has spent your tax dollars reviewing and ultimately granting a patent on a device that basically holds your butt cheeks in a raised position. Okay, not every invention can be a cure for cancer and we understand that looking good makes you feel good and feeling good is important in this cruel world. So perhaps it is important to have an invention that "enhances the presentation of the derriere." The principle is simple: cut two strategically placed holes in a support garment and allow your butt to fit within. The result, according to the inventor, is something akin to a push-up bra for your butt. 
  • If You Liked This Invention You Might Also Like: Patent No. 5842232, "Pad inserts for enhancing the shape of a wearer's buttocks." As we've concluded few problems are as devastating as having "flat or scant buttocks." Sure there are numerous butt enhancement devices, but we like inventor Janice Ward Parrish's unique dual-pad approach. 
#5. Patent No. 6,293,874: "User-operated amusement apparatus for kicking the user's buttocks."  Here's an invention that Jefferson and Franklin could never have anticipated -- a machine that allows you to kick your own ass. At least, there's no question what problem this invention solves ... the anatomic impossibility of booting oneself in the butt. This is of course not the first self-spanking machine (see also Pat No. 920,837 for example), but it's a giant leap forward over previous machines whose paddles needed to be reset after each episode. Inventor Joe Armstrong eliminated those pesky issues with his crank system utilizing rotating arms, resulting in a patent issued in 2001. Best of all the whole apparatus folds up for easy transport or storage so you can even take it on vacation. (Tip of the Hatlo Hat to Greg Aharonian)
  • If You Liked This Invention You Might Also Like: Patent No. 2006/0094518 A1, "Manually Self Operated Butt Kicking Machine." If the previous invention seemed so 2001, then check out J. Leavitt's 2006 patented attempt at self-humiliation--a Rube Goldberg styled seat with a hole, through which a shoe strikes the user's posterior.

Wednesday, December 30, 2009

Terrible Towel Satire? Uh ... not really.

Dear Rich: We would like to spoof the Pittsburgh Steelers 'Terrible Towel' with a "We ARE Terrible Towel" for the Detroit Lions. It would be white with no logos. Satires can't infringe copyrights can they? Thoughts? If you're making one towel to hold up for the TV cameras, you're probably okay. But if you're thinking of making more than one, the Dear Rich Staff would advise against it. First of all -- it's not a copyright issue as copyright doesn't protect short phrases or individual words. 
It's a trademark issue. The term "Terrible Towel" was created by Pittsburgh sportscaster Myron Cope who acquired trademark rights and then assigned the registered trademark to a charity, the Allegheny Valley School, an institution for the disabled. Considering that licensing revenues from the towel have earned the school over $3 million, the school and the Steelers (who acknowledge that the towel is one of the most popular merchandise concepts in football history) both have a vested interest in preventing others from making and selling Terrible Towels. It could infringe and dilute a world-famous mark (and one that is carried to the far corners of the earth.)
Does satire matter? We must clarify one thing: you stated that satires can't infringe copyrights. That's not correct. A parody may be excused as a fair use under some circumstances. The same is not always true for satires. Here's a lawyerly explanation of the distinction. In any case, your use does not seem to qualify as either a satire or a parody, does it? Bottom line: sales and distribution of your towel will likely trigger a cease and desist letter.

Monday, December 28, 2009

Does Published Patent = Issued Patent

Dear Rich: My son has applied for a patent and received a Notice of Publication of Application received from the U.S. Patent and Trademark Office indicating that the subject application was published in November 2009. Do we have to get a copyright and trademark for this also? Does this mean it was accepted or do we still have to wait to be granted a patent? Publication of your son's patent application does not mean that the USPTO will ultimately grant (or "issue") a patent. to him. Ever since November, 2000 the USPTO has been publishing applications approximately 18 months after filing (unless the applicant requested nonpublication at the time of filing). Although publication ends the patent's trade secrecy status, it enables certain patent infringement recoveries.
Copyright or trademark? If your son will be selling the invention as a product, he should consider acquiring a trademark registration for the name. As for copyright, he will acquire a copyright automatically for any copyrightable aspects of his invention. There's more on both topics in this book
The correct answer is (d). Why the baby photo? (a) It signifies the 'birth' of your son's patent, (b) it signifies the new year (or new decade), (c) It's a sad attempt at search engine optimization ("cute baby, patent"), or (d) it was available in the free photo bin at

Wednesday, December 9, 2009

Operator Error: Correction re: Published Photos

Dear Rich: The other day you wrote that if photos are dated before January 1, 1978 and unpublished and not registered at the Copyright Office, they likely entered the public domain on January 1, 2003. I'm confused. I am an attorney and I always tell libraries that have old musty photos that if they are unpublished, the copyright lasts for the life of the author plus 70 years. My understanding is that the Jan 1, 2003 date, when many had "public domain" parties - was for the super old works (author dead longer than 70 years) that had enjoyed a perpetual common law copyright until the 1976 Act which set that date as the entrance into the public domain. Published works that don't have copyright notice or were not renewed entered the public domain. It takes a big blogger to admit they're wrong and we wish we were a big blogger. But in any case, we did get it wrong and you are correct.
How could this happen? Apparently like those people who crashed the White House Dinner, some things just get by the experts. In fact that's exactly the kind of error that keeps us up late at night and the reason why we need to wear retainers to prevent the teeth gnashing, and use expensive biofeedback systems to calm down after every entry. In any case, the only penance that we can propose is a self-imposed cone of silence that shall go into effect immediately.

Tuesday, December 8, 2009

"Trademark Pending" Status? Not!

Dear Rich: I plan on registering my trademark even though I have not begun using it. When does the mark I'm registering show as "pending?" There's no official status for a "pending" trademark registration; you either have a federal registration or you don't. (The Dear Rich Staff thinks that you may be confusing trademarks with patents. There is a "patent pending" status, available to filers of patent applications and provisional patent applications). 
Intent to Use Marks. When you file an intent-to-use application, your mark may be examined and approved for publication, but registration is not granted until you file a document with the USPTO establishing that you've begun using the mark. So, in practical terms, you have no trademark rights until you start selling goods and services associated with the mark. Or as they say, 'no trade; no trademark.'
(Note: If you are asking, when does the mark show up within the USPTO trademark registration system (TARR), that happens fairly quickly, usually within

Monday, December 7, 2009

This Is a Test: The Right to Publish Old Photos

12/09/09 - Note this answer has been corrected following initial publication.
Dear Rich: I recently took a public relations accreditation test that included the question below. The answer was D. If the photos were in company files why can't it be argued they were paid for? If the photos were 20 to 100 years old does the copyright still hold? 

To celebrate its 100th anniversary, your company wants to publish a coffee-table book of photos depicting the company's history. You dig through the files and old annual reports and find many photos, some of which have never been published. Some of the unpublished photos are dated and stamped on the back with the name of a photography studio that has been out of business for 20 years. When you consult with your publisher about the most effective way to reproduce these particular prints, the publisher says they cannot reprint them without the original photographer's permission. You are unable to find the original contract between the company and the photographer. Can you reprint the photos without the original photographer's permission?
A. Yes, if you pay the publisher a fee to reproduce the photos.
B. Yes, the company paid for the photography and therefore owns the prints.
C. Yes, you can reproduce the photos if you give proper credit to the photographer.
D. No, the photographer or heirs own the copyright and must grant permission to reproduce the unpublished photographs. 

The answer to your question within a question is that D is the best (or "most correct") answer.  We understand your desire to argue the point - that's one of the reasons that the Dear Rich Staff quit teaching - but unless there is documentation showing that the photographer transferred rights to the company, the photographer retains copyright. The act of paying for a service such as photography does by itself not grant copyright.
A better and much more long-winded answer would have been:
E. Probably Not. If the photos were subject to a work for hire arrangement executed before January 1, 1978, it's possible that the republication would be permitted since such agreements are interpreted more "loosely" than under the current Copyright Act. However, as a general rule, photos are protected for the life of the author plus seventy years (although if the U.S. ever passes Orphan Works legislation, this whole question will be moot). 
Ennyway we're happy to learn that people in public relations are accredited and hope you passed your test and are earning 20% more than your colleagues. (Also we hope you will indemnify us in case the accreditation tester sues us for copyright infringement.)

Friday, December 4, 2009

Does Google Own My Blog?

Dear Rich: My girlfriend and I started a blog together and we think we have a great title and great content. If we started it on Google Blogger does Google have any rights to what we publish? Do we have to do anything to protect our content and name? The short answers are that (1) Google doesn't own the content or name of your blog (although they do control your URL); (2) you can do things to enhance your legal protection but you probably don't need to anything right away to protect your stuff.
What Does Google Get? Google's Terms of Service (Intellectual property Rights) state:

  Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate.

The Right to Display Your Blog. You do give one thing to Google, and that's "a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services." That basically means you can't sue Google for posting your blog. (Axiomatic, right?) And, in case you're not aware, Google can remove infringing or offensive content (There's more on that in the Terms of Service.)
URLs and Re-Directs. The only real estate that's owned by Google is the URL (domain name) that locates your blog -- for example, Should you decide to switch to another blog provider, you can't take that with you. That shouldn't be much of an issue and in any case, there are ways to redirect fans to a new URL -- the easiest of which is to leave your Google blog up with directions to your new home (like this).
Copyrights and Trademarks. You can federally register your blog name. The Dear Rich Staff provided information about that here. You acquire copyright automatically when you post a blog entry but you can enhance those rights by registering with the Copyright Office. Generally, that's not essential (and a little bit of work) but the rules are here.

Thursday, December 3, 2009

Good Source for Hard Copy Public Domain Clip Art

Dear Rich: My sister and I are planning on writing a small book about our mom. I plan on illustrating the book. What is a good source of clip art that I can use without worrying about copyright infringement ? I actually want a hard copy of images that I can physically cut out the old fashioned way. Wow, we love real clip art -- not that digital stuff -- and we love you for reminding us of back in the day when we used to write the Monroe County obituaries and the HOT LINE column at the Bloomington Herald-Telephone (now the Herald-Times) and where the "art" department consisted of a room with unbelievable clip art catalogs. (The Dear Rich Staff could live inside that clip-art world.) ... Right, you had a question! The short answer is that one of the best sources of hard-copy clip art is Dover Publications (and no, we're not a paid affiliate).

Wednesday, December 2, 2009

Using Trial Transcripts in Play

Dear Rich: I'm a young aspiring playwright and am interested in writing a one act based on the transcript from a trial that took place earlier this year. The defendant was found guilty of misdemeanor manslaughter and I've received the transcript directly from the AG office. Can I use the transcript liberally (adding my own lines here and there but basically using what was actually said)? And then who is the play copyrighted to? Is it credited to me as the writer and "based on the transcript of..."? The Dear Rich Staff thinks you'll be able to pull it off (and hopes you give it a shot) but we can't guarantee freedom from legal liability. (We know that sounds legalese but it's the best we can do.)
We've been here before. We explored a similar issue last August regarding the Nuremberg Trials transcripts and we start with the same principles -- copyright does not protect spoken testimony, only fixed versions of that testimony. The 'author,' for copyright purposes is typically 'the fixer,' -- in this case the court reporter. And as we also noted, at least one case has held that court reporters are not authors of courtroom testimony because the mechanical process of transcribing does not demonstrate sufficient originality. We're unable to find any caselaw that grants Copyright in trial transcripts. Although laws currently exist providing common law rights to spoken statements, it's not clear whether they could be successfully asserted against you. If we were a betting blog, we'd bet that you would be okay -- under copyright law -- to use the transcripts. 
What about other legal theories? Are you in danger of defaming, invading anyone's privacy or infringing a right of publicity? As you're probably aware, many great plays have been based on trial transcripts, often years after the final gavel sounded -- for example, Inherit the Wind and The Crucible. Using a more current case may anger living participants especially if:  (1) you add additional dialogue that slanders an individual, (2) you include false facts (or facts not introduced as public evidence), or (3)  the trial is about someone famous and you use that fame as a basis for promoting your play. To further protect yourself, we recommend that you "fictionalize" the trial--for example, change the names and other identifying facts so that parties are not identifiable (this may be tricky if it is a locally publicized case). 
Who gets credit? You get credit as author, at least as to the original material you contribute and your organization of the material and stage directions. You have no obligation to attribute the source (and it may even be wise to avoid doing that if you've ficitonalized.) When registering the work at the copyright office, you would disclaim the material from the trial transcript.

Tuesday, December 1, 2009

Exploiting a Sports Award Trademark

Dear Rich: I am the owner of a trademark of a once prestigious sports award. Can I have sports related products manufactured of the past recipients. Most have passed away and some are still living. I live in New York. Should I be concerned about "right to publicity"? Yes, you should be concerned about the right of publicity unless you have written permission or a license. (BTW, we think the "right to publicity" is for people like Kim Kardashian.) 
Owning an award doesn't grant an automatic license.  As for your trademark ownership, we would need more information before responding, but assuming it's a registered trademark like this one, it seems like your rights are limited to promoting the award, not the individuals who receive it. If that were not the case, then anyone could provide awards to sports stars and then make money off their names and personnas. Perhaps a listing of the names of all winners may be excused, or perhaps a t-shirt listing all of the winners in a category or for a time period would not violate a sports star's right of publicity but in general, we believe sports stars will object and will likely prevail in these types of claims. Keep in mind that one of the landmark cases establishing the right of publicity took place in New York and involved a baseball player.