Can Health And Human Services Copyright New Smoking Package Warnings?

from the copyfraud? dept

As you hopefully know, content created by the US federal government is supposed to automatically go into the public domain. There are a few exceptions, mainly having to do with work created for the government by others. But Dave P. reasonably asks why the highly publicized new graphic (in more ways than one) “warning” labels for cigarette packages appear to have a very blatant copyight notice, claiming that the copyright is held by HHS (Health & Human Services). You can see the full PDF, which is also embedded below, but you can see the first image here, with a © notice in the lower lefthand corner:

The really bizarre one is the last one, which appears to just be a red triangle with an exclamation point:
It appears that a red triangle with an exclamation point is widely used in other areas as well. In fact, if you do an image search for such things, you can find tons upon tons of red triangles with exclamation points inside.
Perhaps HHS should sue.

Or, better yet, recognize that this is copyfraud and drop the bogus © notices.

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Can Health And Human Services Copyright New Smoking Package Warnings?”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Actually, I think they have copyright not the idea of ! triagle, but this specific execution with the shading and stuff. Remarkably, you can get a copyright on something that is common, if you narrowly restrict it to the actual specific content and not the general content.

I’m amazed that someone who chats about copyright so much wouldn’t know that.

Transbot9 (user link) says:

Re: Re:

Doesn’t pass the “Idiot in a hurry” test commonly used in court these days. They also are not changing the meaning of the symbol by the specific shading.

I suppose a good lawyer could argue either way, but symbols are typically covered under trademark rather than copyright. On top of that, it is an internationally recongnised as a symbol in the public domain.

Anonymous Coward says:

Re: Re: Re:

You miss the point. Idiot in a hurry doesn’t apply here, because it is a very specific use, with a very specific design graphic. The symbol isn’t what is copyright, it’s the presentation of the symbol, the graphic. It’s the color and texture and shading, which are all unique to this particular rendering.

It doesn’t suggest that they are claiming copyright on ! signs. That is just Mike Masnick leading you down the garden path.

Anonymous Coward says:

Re: Re:

I don’t get you people. If someone suggests that remixes are art, you scream and shout that they most certainly aren’t (“Why are you against creativity!!!”). But when something like this shows up, suddenly it’s “creative” and can be covered by copyright.

Make up your minds already!

Andrew Norton (profile) says:

second one

The second is actually a UK roadsign. It’s the sign for ‘other danger'(can see it on page 51 here

The fact they’ve altered the shading in a very minor way means that they have taken a copyrighted piece of art (the sign) and altered the shading ever so slightly, and then tried to claim copyright on it, when it’s functionally identical. It’s clear copyfraud.

The Baker says:

I wonder if whoever created the “artwork” just robotically plastered a copyright symbol on anything they generate. Just like they are taught in school … copyright everything.

We are so blind to these little symbols because they are on EVERYTHING? that perhaps no one reviewing it noticed.

Then again it could be a conspiracy … US Homeland Security wants to own the rights to all UK road signs???

Anonymous Coward says:

“Works of the United States” are by statute deemed to be exempt from Title 17 and the rights associated this Title. In other words, such works would ordinarily reside in the public domain.

However, these is a provision in the pertinent statute that nothing in it prevents the USG from holding copyrights trnsferred to it by “assignment, bequest, or devise”.

To date there has been only one case of which I am aware that has considered this statutory provision. In that case it was held that the USG did in fact hold copyright to a work that had been assigned to it because under the facts of the case it was not clear that the reasons underlying the statutory prohibition had been paid short shrift. This was the Community for Creative Non-Violence case within the DC Circuit about 20 years ago.

Hence, the answer to the question at this time can only at best be answered “who knows?” without a detailed analysis of the facts associated with the creation of these ads. If they were done by persons in the USGs employ the answer is obviously “No, copyright does not exist.” If however, they were done by third parties, then further facts need to be fleshed out before an opinion can be offered.

Anonymous Coward says:

Re: Re: Re:

Two answers come to mind (simply because I have dealt with the USG on this issue more times than I can ever hope to recount):

1. Except for a very few lawyers within the USG who virtually never come in contact with the agencies, those lawyers who do have almost certainly never read any part of Title 17.

2. See Answer 1.

Anonymous Coward says:


As AC17 notes, it’s certainly possible (and indeed quite likely) that HHS employees did not create these images themselves, and instead HHS contracted with an outside entity to make them. Such a work wouldn’t necessarily be a “work for hire,” so the outside contractor would be the copyright owner, and could sell or assign copyright back to HHS.

And as for why HHS would want to copyright these images, or rather, to claim copyright in them (the images would be copyrighted whether HHS claims it or not). I can only speculate, but might that not be an additional legal tool to pursue people cranking out counterfeit cigarette labels?

Cloksin (profile) says:

Lets see what HHS has to say about this.

Ok, so after reading this post last week I went to the site linked to and left a comment there:

Take the copyright notice OFF the images since federal agencies cannot copyright content!

Federal government cannot copyright content, anything created by a federal government agency must go immediately into the public domain, yet your images clearly display a copyright logo misleading viewers that the HHS holds the copyright on these images.

Just today I recieved this back from one of their admins(I’ve left his name out in respect of privacy):

Hi there.

I wanted to get back to you with some information regarding your concern.

The images used for the graphic health warnings were created by government contractors who established copyright in the works, and assigned that copyright to the government. FDA/HHS holds the assigned rights. The images that will appear on cigarette packaging and in cigarette advertisements will not display a copyright logo.
At this time, we have given permission for use to the companies required to display the warnings on cigarette packaging and in cigarette advertisements, as required by the FDA regulation. Currently, parties can also use the images as permitted under the Copyright Act, which means that individuals can use the images for their own personal use and for fair use such as news reporting or parody.

Admin, FDA Tobacco Retailer Education

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...