Fox Sends Cease & Desist Letters To Firefly Fans Selling Jayne Hats, Because Money

from the pissing-off-fans-left-and-right dept

As a whole bunch of you sent in, via a variety of different sources, apparently a maker of “Jayne hats” from the cult TV show Firefly has received a cease & desist letter from the legal attack dogs at Fox, just as an “authorized” version has shown up for sale on Thinkgeek and other sites.

People are not at all happy about this.

Recently, though, Ripple Junction, a company that produces licensed apparel, obtained the rights to mass-produce the Jayne Hat. It instantly became a hit seller on popular nerd sites like ThinkGeek. It seemed that getting a Jayne hat was easier than ever. But that ease came with a price.

Firefly fans are coming out of the woodwork, and they are hopping mad. Why? Turns out in the last few weeks many of them have received cease-and-desist letters or have simply been banned from Etsy for producing DIY Jayne Hats. This communal endeavor, it seems, is coming to a close, and fans of the show are asking themselves why. Isn’t the whole point of the Jayne hat that it be homemade? Doesn’t it mean anything that the hats are often auctioned off at charity events? After 10 years of nothing, isn’t it unfair for Fox to suddenly force lifelong fans to cease production of something they love?

The good folks over at ThinkGeek, who are known for being generally cool and with it — and not at all prone to dickish legal behavior — were quick to put out a statement about all of this, noting that they had nothing to do with the cease and desist letters, and in fact, they’re happy to compete with the homemade sellers.

We just wanted you to know that ThinkGeek has nothing to do with the C&D notices. The hat is licensed by a vendor with whom we have a relationship and while the hat is not an exclusive to ThinkGeek, we did have a hand in its development and answered the difficult questions like, “Are the earflaps long enough?” and “Is that man afraid of anything?” (Yes and no, respectively.)

Would the C&D have happened if we did not carry the hat on our site? We’re not sure; we’ll leave that question to sharper legal minds than ours. We’re here to carry the shiniest of goods from ’round the ‘verse, even maybe makin’ them ourselves. We just want y’all to know that while we might not always aim to misbehave, we’ll always be sure to get you the best stuff this side of the Eavesdown Docks.

The way we see it, if people want to make their own, shiny. For those out there who can’t knit to save their gorram lives, we can help.

See? Now that’s a reasonable attitude to take. But big media companies like Fox tend to employ lawyers who aren’t known for their “reasonable takes” on things, no matter how much goodwill it might destroy among fans.

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Companies: fox, thinkgeek

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Comments on “Fox Sends Cease & Desist Letters To Firefly Fans Selling Jayne Hats, Because Money”

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148 Comments
The Real Michael says:

Re: Re:

Precisely. It’s more or less the exact same reason why the movie studios and music labels attempt to regulate every independent work outside of their signed artists, using piracy as an scapegoat excuse. They fear competition with the open market, so they work to stifle it any way they can.

What’s next, a law against knitting?

BearGriz72 (profile) says:

UPDATE: ThinkGeek gets even Shinier!

Browncoats, we hear your concerns about the cease and desist on Etsy Jayne Hat sellers!

We weren’t involved in that process, but we have reached out to FOX and we’ve definitely heard what you’ve had to say. (We know you guys have Vera to back you up.)

As a result, we’ve decided to donate the profits from all Jayne Hat sales on our site to Can’t Stop the Serenity, a Browncoat charity dear to ThinkGeek’s heart that raises funds and awareness in support of Equality Now. We’ll continue making that donation until we run out of stock of Jayne Hats.

We hope the Hero of Canton himself would approve.

http://www.thinkgeek.com/blog/2013/04/jayne-hat-proceeds-to-cant-sto.html

G Thompson (profile) says:

Re: UPDATE: ThinkGeek gets even Shinier!

Update to the update:

From Thinkgeek: 100% of profits go to Can’t Stop the Serenity!

UPDATE 4/11 4:23pm ET: So, we got Fillioned.

Nathan Fillion tweeted a link to our blog post about our Jayne Hat donation to Can’t Stop the Serenity (thank you, Nathan!) and our blog couldn’t handle the traffic, taking the whole site down with it (thank you, Nathan?). For now, we’re directing traffic from that post to this more stable page. The content of the blog post follows:

Browncoats, we hear your concerns about the cease and desist on Etsy Jayne Hat sellers!

We weren’t involved in that process, but we have reached out to FOX and we’ve definitely heard what you’ve had to say. (We know you guys have Vera to back you up.)

As a result, we’ve decided to donate the profits from all Jayne Hat sales on our site to Can’t Stop the Serenity, a Browncoat charity dear to ThinkGeek’s heart that raises funds and awareness in support of Equality Now. We’ll continue making that donation until we run out of stock of Jayne Hats.

We hope the Hero of Canton himself would approve.

Nathan Fillion strikes again ๐Ÿ˜‰

Anonymous Coward says:

Re: Re:

“This is the same network that canceled the show, have they stated why that was done?”

While Joss Wheydon created the show, Fox produced it and, apparently has the licensing rights.
While Wheydon would’ve been reasonable and worked out a deal for a nominal fee (which fans would’ve complied with since they love the guy), Fox goes in with an attitude of “MINE! MINE! MINE! GIMMIE! GIMMIE! GIMMIE!”

Digitari says:

Re:

My wife is a Browncoat, she wants the email of Nathan Fillion and Joss Whedon, ( My wife is a delicate creature and is not prone to violence, she is Holding a knife to my throat as I type, PLEASE HELP!!) this was the first article I read this morning, and we have not even had our coffee yet, and she is spitting Venom…

Why piss off the FANS????

ltlw0lf (profile) says:

Re: Re: Re:

if fox cared about the fans we’d be watching season 110 or so right now

As much as I would personally love to be watching season 10 (the show started in 2003,) a friend of mine (also a fan) pointed out something I didn’t think about. The show was the best thing on television then, and likely would have still been good now had it been allowed to run its course, but in many ways it means so much more to us because it failed due to stupid forces beyond the fans control. The show never got a chance to jump the shark, or produce a bad episode, or get to the point where it became sour. It never had its 5th and 6th season of Lost moment.

I hated him for saying it, but I think he has a point. Had the show run for 10 years, would it still have been the show it was when it only ran for part of a season. I think it would have, but they also pointed out that Buffy had the whole killing a god thing, and wrote themselves into a corner, which never happened with Firefly.

Still…it would have been awesome.

JarHead says:

Re: Re: Re: Re:

Your friend do have a point, and it’s similar with my own opinion. While I’m not a fan of the series, I’m thinking generally. US/Hollywood series, and those which uses their models, seems to me to have a “let’s bleed ’em dry while they’re in torpor” philosophy toward it’s viewers. They seem to drag the story on and on until their rating drops, then get canceled. I used to like series like “Heroes”, “Stargate” (all variants), etc, but the story dragging puts me off.

Why not put a definite running length of a series, like Anime. I even have more respect to some of BBC series, cos they seem to put a definite limit to a series (or maybe the series I happen to watch is that way). Look at what Star Wars did “right” in this regard (that is, prior the prequels, after that, same ‘ol money grabs). Create an engaging limited series and let the fans expand it, monetize by way of merchandise.

Ultimately, use the tabletop RPG strategy. Create a core product and let the fans expand it. AFAIK DnD still profit to this day despite the core is done at the end of ’70s.

ltlw0lf (profile) says:

Re: Re: Love Thinkgeek's notices

If the copyright holder has no interest in developing it and left the series unfinished then it should be made available for anyone to do it.

Amen! 1,000,000xAmen.

Orphaned works should not be allowed to remain orphaned.

Of course, if we figured out a better way to handle getting artists their fair pay for their work instead of copyright (which only rewards large companies that can buy up and lock up copyrights,) we’d be a lot better off.

Anonymous Coward says:

Obviously copyright is protecting the property that fox deserves to own from the laziness and parasitic nature of it’s fanbase who obviously just wants everything to be free. Filthy parasites. Get a job, you commies!

Seriously though, fuck copyright and all like intellectual property laws. This kind of thing is seriously just bullshit, and this kind of entitlement by Fox is unacceptable.

Dan S (profile) says:

“if people want to make their own, shiny.”

This statement is actually incredibly narrow. I took it to mean that it would be fair use for someone to make a hat for themselves.

I think the cause of the C+D though was people that weren’t making their own, they were making hats for others? Beneath the ‘in ‘verse’ language, I find it annoying that they don’t address this more explicitly.

Michael (profile) says:

Re: Re:

I think the cause of the C+D though was people that weren’t making their own, they were making hats for others?

So what? If I make a Mickey Mouse shaped pancake for myself I am fine, but should my local diner pour them a bit close together they should expect C&D orders from Disney?

Beyond the stupidity of telling fans that they cannot make something that resembles something they saw on a 15 year old TV show shut down in the first season, THIS IS A KNIT HAT.

I think anyone making and selling these should change the name to “Fox’s A$$-Hat” and keep on selling them.

E. Zachary Knight (profile) says:

Re: Re:

Calling them “Jayne hats” and making them look exactly like the hat Jayne wore in the series could be copyright infringement. Kind of silly, but that is the world we live in.

Now, the question then becomes, can you legally recreate and sell the hat without using the term “Jayne”? If people are selling replica’s but not referring directly to the show, would Fox be in its right to send a C&D? I wouldn’t think so. While the hat had a unique look in the show (did you see any other knitted caps?), it isn’t unique in the real world.

Jay (profile) says:

You know this song...

Take my money, take my land…
Take me where I cannot stand…

I don’t care, I’m still free,
You can’t take my hat from me…

Take me out to the black,
My best show ain’t coming back…

Burn the net and boil the seas
I’ve already turned to piracy…

Have no place I can be,
Since I found Serenity

But you can’t take the sky from me

Instrumental

Take my love, for the land…
Take me to where I cannot stand

I don’t care, I’m still free
Fox forced me to pi-ra-cy…

Take them out, to the black
Tell them the show ain’t comin’ back…

Burn the land, boil the sea
Can’t take away my me-mori-es

Have no place, I can be
Since I’ve found Serenity

But you can’t take money from me…

outro

Anonymous Anonymous Coward says:

Re: Re: Re: You know this song...

(Holding Geek Badge out for inspection) Umm, excuse me sir, but while I have heard of Firefly (usually here) I have never seen the show, and don’t know what channel it might be or have been displayed upon primarily due to my not having had access TV related entertainment for, ohh thirty years or so. That in turn means I have never heard the theme song either.

That lack of access was self determined whilst limited free time was spent building computers, making early versions of Red Hat work with a Windows 3.1 network, sailing, studying marketing and management at higher levels, and refusing to read that book about Assembly Language whenever I asked my friend who actually studied computers a why question, etc.

I have reversed my self imposed TV related moratorium, but am an expat on a cable system that could care less about my geekdom.

Mea culpa!

BTW, how does that tune go?

Trails (profile) says:

Re: Re: Re:2 You know this song...

building computers, making early versions of Red Hat work with a Windows 3.1 network, sailing, studying marketing and management at higher levels, and refusing to read that book about Assembly Language whenever I asked my friend who actually studied computers a why question

Compared to watching Firefly, this is succinctly described as “being idle”. ๐Ÿ˜‰

Firefly is on Netflix or the *cough**cough* bay.

The opening is http://www.youtube.com/watch?v=SmyO2xuI1qI

Anonymous Anonymous Coward says:

Re: Re: Re:3 You know this song...

LOL! Idle, eh? I neglected to mention that since I had more than one computer it was possible for me to run my MS Flight Simulator (v3.4 to current) simultaneously, and eventually on an online network that provided live air traffic control all over the world, from all over the world. Idle indeed.

Franklin G Ryzzo (profile) says:

Re: Re: Re:2 You know this song...

Here ya go: https://www.youtube.com/watch?v=D7vS4z6ngQo

Also, the show is aired on SciFi (still refuse to spell it the new way), but I’d recommend firing up your favorite torrent client and surf the pirate bay… Since the show was a space western about smugglers it’s a little more fitting ๐Ÿ˜‰

Anonymous Anonymous Coward says:

Re: Re: Re:3 You know this song...

Damn, now I fall into that catch basin created by regionalism. The local cable provider includes a stream of that SciFiyist channel, but it ain’t the same in this backwater, no Firefly, even though I am within 70 miles of the US border.

Hmmmm, Firefly, torrent. Firefly, torrent. Deprive Fox of my eyeballs seeing their advertising revenue (or SciFy and whatever they pay to Fox) on a show I cannot watch? And now YOU guys suggest that I commit the most horrific act imaginable by todays society (err Big Business Overlords) and view this series via illicit means? Nay, you seem too insist…I am loosing self control, I must torrent. I must torrent…

Wally (profile) says:

Re: Re:

The hats were made by fans and sold on ThinkGeek…..They sold the hats as “Jayne Hats” because there is an episode where he gets a post from his mother wishing him well.

Now here is what I think Fox was thinking. They cut Firefly after one season citing that the show “didn’t get enough ratings” or viewership under the Josh Wheaton name. Thing is, if Fox is blocking the sales of fan made things from the show that they licensed and gave a group permission to sell….the group actually made more money showing that there was in fact viewership…because of that the producers and writers and actors Fox short handed when they killed the show could have made more money than what Fox was paying them. In other words, Fox didn’t pay the actors their due because the show got canceled from “lack of viewership”.

The reasoning of Fox has been like this towards merchandise for years…which is truly the reason why George Lucas demanded that Lucas Films keep control over merchandise.

Wally (profile) says:

I loved Firefly….and it was sad to see how Fox Entertainment treated the show. It was the only SciFi show I can think of outside of the Alien (of which Alien Resurrection shared the same writer) series that contained accurate and plausible technologies…..that didn’t need much explanation to fans because the story was the focus. The wife and I are huge fans of the series :-).

This story proves that Fox isn’t just crazy in the news room and it pisses me off. They didn’t go after the Alien chest burster plushes, so why go after Jaynes’s hat?

It should be noted that this is why George Lucas kept the merchandizing rights to StarWars so that people could make fan made stuff without a hassle.

Wally (profile) says:

Re: Re: Re:2 Re:

No I did not miss the point. George Lucas created the StarWars universe…not 20th Century Fox….he kept the merchandizing rights so that Fox wouldn’t sit on the intellectual property that he created.

Josh Wheaton created the Firefly universe….and did not ask to keep the merchandising rights to anything.

The bottom line is that you are referring to George Lucas pissing off his fans concerning the changes he made in the original StarWars films (Han did not shoot first, it was edited that way because he still moves his head as if dodging something in the original cut) you missed my point entirely. It is a merchandising issue and worse yet, Fox licensed the manufacturing rights to these people to make these hats and are suddenly pulling them because the hats are making money.

Wally (profile) says:

Re: Re: Re:4 Re:

I missed him saying it apparently…this is what happens Ninja, when I get used to having repeat my point to people. It’s tree sex season in rural central Ohio and was suffering from severe allergies this morning…Not really a crutch but headaches do make me more cranky than others.

And yes I admit misreading that. Though, in spite of my first sentence, I responded to this mostly:

“Good Guy George Lucas …. lol
That’s a laugh ‘n a half.”

Wally (profile) says:

Re: Re: Re:6 Re:

Fortunately I’m not bad concerning cottonwood trees….some trees in my area bud early on and my house has dogwood trees in front of it. Pollen levels surge upward and they day I started this discussion, the pollen count was 4,751 ppm….which means it’s very high…while the temperature is just right for mold and mildew to also grow (both of which I am mildly allergic).

A bit of medical history and I do not expect to be treated differently. I suffered a head injury at 11 months old. The headaches are compounded during sudden pressure and temperature changes in my area of the US. I suffer mild achy stiffness as the temperatures vary suddenly and as storms approach. When we have a temperate low storm system coming through and the temperature drops 20 degrees F within 2 hours while raining…I get headaches.

Needless to say the trees in my area are having extremely hot, dirty, sweaty sex this year….and Mrs. Wally and I suffer a bit…..though she’s better at hiding her symptoms than I am.

Anonymous Coward says:

I’m aghast! They own the legal, exclusive rights that are valuable and worth money, and then they want to exercise those rights by excluding others and making money? OMG! That’s so bad! We should all get to capitalize at the expense of others. So what if they put in the time, energy, money, and skill into creating the value. I should be able to free ride and reap where I have not sown!

/s

Anonymous Coward says:

Re: Re:

So what if they put in the time, energy, money, and skill into creating the value. I should be able to free ride and reap where I have not sown! /s

Fox had entirely abandoned Firefly and it’s fanbase 10 years ago. Those who loved the show made themselves hats since they could not buy an official one anywhere. Those who could not knit bought them from those who could. They became popular enough that they created a market for them. Only then did Fox step back in to capitalize on that demand, shutting out those who had created it.

So just who is free riding on whose “time, energy, money, and skill” here? I think you’ve got it backwards.

BTW, the show was about people struggling to be free against massive corporations and the corrupt, oppressive government they control. This move seems precisely calculated to piss that fanbase off as much as possible.

out_of_the_blue says:

THIS is what your Ivy League education comes to, Mike?

Defending the right of dolts to make stoopid knits copied from a TV show?

While over 100 million are unemployed in America? When McDonalds requires a college degree to be a cashier? — Well, yeah, in the current economic milieu, YOUR degree is worth LESS than one from Hamburger University; at least they feed people, you just push crap out.

Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike daily proves the value of an economics degree.
03:00:43[d- 1-7]

Wally (profile) says:

Re: THIS is what your Ivy League education comes to, Mike?

“Defending the right of dolts to make stoopid knits copied from a TV show?”

You’ve never tried knitting and seriously…why do you even bother with this out_of_the_blue? Is there some sort of personal problem you would wish to discuss with me? I am a psychologist and a counselor.

JEDIDIAH says:

Re: Re: THIS is what your Ivy League education comes to, Mike?

“Defending the right of dolts to make stoopid knits copied from a TV show?”

Believe it or not, this is the point of copyright.

Creative works become intellectual capital for new work. They are not a virtual land grab or a means to hide old works or suppress new ones.

Anonymous Coward says:

Re: THIS is what your Ivy League education comes to, Mike?

First if there where 100 million unemployed in the United States we would have a 40% unemployment rate.

Second, if you are so worried about people making money then why are you arguing against someone who is trying to DEFEND PEOPLE MAKING MONEY FROM GOODS THEY ARE PRODUCING AND SELLING?

I stand by my original assessment of you which I made the first time I saw one of your posts over a year ago: high functioning mental retard.

Gwiz (profile) says:

Re: THIS is what your Ivy League education comes to, Mike?

When McDonalds requires a college degree to be a cashier?

Personally, this is one aspect of tough economic times that I actually like. Instead of being waited on by some kid more worried about his pimples and whether he will get to see Suzie’s bra that night, I get someone who actually gets my order correct and gives me the correct change.

Well, yeah, in the current economic milieu, YOUR degree is worth LESS than one from Hamburger University; at least they feed people, you just push crap out.

Just venturing a guess here, but I would say that Mike’s income is significantly more than a MickyD’s cashier – so really not sure what your point is, Blue. Are you complaining that Mike’s degree is worthless to YOU? The answer to that would be: “So fucking what? Who really gives a shit how much YOU value someone else’s degree?”

RD says:

Re: Re: THIS is what your Ivy League education comes to, Mike?

“Just venturing a guess here, but I would say that Mike’s income is significantly more than a MickyD’s cashier – so really not sure what your point is, Blue. Are you complaining that Mike’s degree is worthless to YOU?”

This is EXACTLY, 100% of ootb’s problems with Mike and everyone else that succeeds. It’s all about how all this relates to HIM and his viewpoint.

ootb is a FAILED CREATOR who now trolls the internets taking shots at people who actually DO something with their lives, and who are far more successful than his worthless ass ever was. It’s difficult to be a never-was, and ootb can’t stand it.

Rikuo (profile) says:

Re: THIS is what your Ivy League education comes to, Mike?

“Defending the right of dolts to make stoopid knits copied from a TV show?”
And you are somehow able to measure the intelligence of the hat makers, how?

“While over 100 million are unemployed in America?” This has what to do with the article? (Or maybe, if there weren’t any C&D’s, the knitters could support themselves) Besides, 100 million unemployed? That’s a third of the US population! The latest figures, from March, have the unemployed rate at 7.6%

“When McDonalds requires a college degree to be a cashier? –” What does this have to do with the article?

“Well, yeah, in the current economic milieu, YOUR degree is worth LESS than one from Hamburger University; at least they feed people, you just push crap out.”
From Mike’s Wikipedia page (yes, he has one, AWESOME!)
“He has a bachelor’s degree in Industrial and Labor Relations and an MBA, both from Cornell University.[4]”
Cornell is an Ivy League university, not a “Hamburger” one, whatever the fuck you mean by that.

No, you have hit rock bottom here, you shit-eating bitch. Before, you at least padded out your attacks with some sort of reference to the article, some semblence of an argument, but here, you just turn up, drop your pants, wave your tiny dick around and insult all of us. Now fuck off, and never darken these comments again. You’re not welcome, and you never will be. You have lost all possibility of being taken seriously here.

E. Zachary Knight (profile) says:

Re: Copyright on clothes

While there is no fashion design copyrights, there is movie, and TV copyrights. Those copyrights extend their protection to anything uniquely identifiable to the movie. That is why no one by MGM can make Ruby Slippers or use the exact look for the Scarecrow and Tinman, as an example. That is why Fox thinks it is the only one who can license the rights to sell Jayne hats.

Wally (profile) says:

Re: Re: Re: Copyright on clothes

“Except those aren’t uniquely identifiable to the movie”

But it is to the TV Show that supposedly had a very little following. The title of the merchandise in question is “Jayne Hat” which is a reference to an episode where the characters aboard the Firefly class ship Serenity go to a post office in the middle of a bizarre at the ass end of outer space. One of the characters gets a post from his mother….in which includes a hat that had been in a wooden box for a large amount of years…in that pattern.

I’m not defending Fox as they claim it a copyright issue when it really is a trademark merchandising issue. Fox gave ThinkGeek permission to sell these hats but found that the group making then was making money from a show that they made money from without paying much IP property to Joss Wheydon. The entire reason the show got canceled by Fox was because the producer, Joss Wheydon, wanted to be paid more for his work as he almost didn’t see a dime. Fox cited ratings and moved on.

E. Zachary Knight (profile) says:

Re: Re: Re: Copyright on clothes

I am aware that they are not unique to the real world. My daughters have owned several pairs of “ruby slippers” but they were never called “Ruby Slippers” in any marketing materials. However, you cannot make a Wizard of Oz movie that includes Ruby slippers because those were a construct of MGM.

Wally (profile) says:

Re: Copyright on clothes

It’s not a copyright issue…it is a supposed marketing trademark issue. The issue is that these hats were licensed by Fox to be made and because the manufacturers were making money from a show that Fox claimed in court was not getting enough of a fan base to continue after one season…they pulled it.

Wally (profile) says:

Re: Re: Re: Copyright on clothes

None. You’re not getting the fact that the trademark of the merchandise references a character from Firefly. Another great example is that my mother in law got me an Alien chest burster plush toy from the same website. People outside of Fox made that and yet they did nothing to pull them.
This is making me believe that Fox hid the true ratings of FireFly and since they cut the show when Joss Wheydon rightfully asked for a raise. They are sitting on FireFly.

Now as to your question…it is trademark in the title of the merchandise being sold….in reference to a character in the show on a specific episode where he gets a care package from his mom that was sent when he was 15 years old. So it’s a trademark issue because of the way “Jayne Hat” is titled. It’s implying that it is a replica of the hat that the the character, Jayne, got from his mother.

crade (profile) says:

Re: Re: Re:2 Copyright on clothes

I know Jayne was a character on Firefly.
Before and after firefly, it’s also a pretty common name. If you ask me it’s a toque probably made by a lady named Jayne that looks like one in an old tv show.

Anyway, if it’s just a trademark on the title, thats easy. Just change the title to “not a Jayne hat”

Wally (profile) says:

Re: Re: Re:3 Copyright on clothes

The hat is based on intellectual property held by Fox. They are not being copyright dicks, they are being trademark dicks. Why? Anything made and sold based on that show is trademarked or licensed by Fox. You do it without license you will likely be gone after for trademark infringement…if you make something within 5 years of the newest episode..but alas Fox based their brief on copyright and not merchandising rights….which means Fox doesn’t have a case against ThinkGeek.

What I’m getting at is that this is a trademark issue but was filed as copyright and reported as such….ImNotYourLawyer explained it pretty well.

Anonymous Coward says:

what made me laugh about this, more than anything, is the fact that people are up in arms because of C&D letters over a freakin’ hat but dont give a shit, never say a freakin’ word, about something like TPP, CISPA or TAFTA that could easily end up destroying freedoms and lives. someone explain to me why it is more important to be able to wear a hat than not be tracked by the government. absolutely baffling!

crade (profile) says:

Re: Re:

Because not being able to wear an orange hat is an actual problem, whereas being tracked by the gov’t is only a potential problem (depending on what they do with the info they get by tracking you). Plus, those things that you mention are not actual mass incidents of government tracking, but only rules that hypothetically permit tracking.

People will often get more upset when their lives are actually interfered with actual interference in their lives than with hypotheticals. Once the rules get passed, the tracking happens and the gov’t uses the info in a bad way, the individuals affected will certainly be more upset than about the hat.. Course it will be too late by then, but oh well!

Anonymous Coward says:

Re: Re:

“what made me laugh about this, more than anything, is the fact that people are up in arms because of C&D letters over a freakin’ hat but dont give a shit, never say a freakin’ word, about something like TPP, CISPA or TAFTA that could easily end up destroying freedoms and lives. someone explain to me why it is more important to be able to wear a hat than not be tracked by the government. absolutely baffling!”

First off, you’re picking a fight with the Browncoats here at techdirt…this includes Wally who seems to be a lot like River….

Second….this C&D shit, which you think that the world should not be freaking out over, is done by the same types who support such measures to prevent intellectual property from growing.

IAmNotYourLawyer (profile) says:

It’s not clear from the articles what basis Fox is asserting protection, so here are some likely areas:

Copyright Articles of clothing may qualify for copyright protection as a “pictorial, graphic, and sculptural works”, but it’d be pretty unusual and weak. The only parts that might be protected are those “features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”. 17 U.S.C. 102(a).

The utilitarian aspects of the hat are not eligible for copyright, in particular the physical design. So the general hat shape, ear flaps, and ties are definitely out. The pom-pom on top is potentially purely aesthetic, but it’s also such a generic aspect of hats that it’s not likely to be protected- scenes a faire essentially. The US copyright office won’t register garment designs.

The color pattern has a better claim to being protected, but probably isn’t. Cloth patterns generally can qualify for copyright. There’s nothing particularly functional about the colors in the hat; it would be equally functional (as a hat) if it were purple, green, or black. So there is some creative expression in the color choice- it was obviously selected to be garish for the humorous effect. That being said, there’s also not much creatively in terms of having two horizontal rows of solid colors (the solid row aspect might actually be functionally driven by the nature of knitting/crocheting). This was about the most simple two color design you could have, and it’d be easy for a court to just say there wasn’t anything protectable in that.

Galiano v Harrah’s, 416 F.3d 411 has some nice discussion on this.

Note that a written pattern for the hat probably would be copyrightable. Of course, someone could write up their own version of a pattern that results in a similar hat. And even if a pattern is copyrighted, the object you make from it (i.e., the hat) doesn’t necessarily have any protection.

Patents The hat shape and design could potentially be patented, but it’s expensive and unlikely anyone bothered.

Trademarks The hat itself probably can’t qualify for a trademark. It hasn’t been really used as a mark of the show or company.

Unfair competition/confusionA better issue is the use of the Firefly name or characters in the advertising. But some use of another’s marks is allowed, including if necessary to fully describe your goods/services (e.g., We repair Toyota cars). To the extent that people need to refer to Firefly to identify where the hats are inspired by/duplicated from, that’s probably ok. As long as people aren’t trying to pass off their versions as official, Fox approved, or the like, there’s not likely to be an issue with source confusion.

IAmNotYourLawyer (profile) says:

Re: Re: Re:

Even assuming that Fox has a trademark on “Jayne”, there’s still a fair use trademark doctrine that would probably allow using “Jayne” to some degree.

Indeed, we may generalize a class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one. Such nominative use of a mark–where the only word reasonably available to describe a particular thing is pressed into service–lies outside the strictures of trademark law: Because it does not implicate the source- identification function that is the purpose of trademark, it does not constitute unfair competition; such use is fair because it does not imply sponsorship or endorsement by the trademark holder. New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302.

If sellers are using “Jayne” as a descriptive matter (“like Jayne wore in the show”, “inspired by Jayne”, “we can make you an unofficial Jayne-like hat”) and are making it clear they’re not official, sanctioned, or endorsed, then they’re probably ok using the word “Jayne”.

Wally (profile) says:

Re: Re: Re: Re:

It isn’t about the copywritten name of the character, it’s about referring to the product as an exact replica of the one that the character received from his mother in an episode of the show. It isn’t copyright trolling as much as it is Trademark Squatting.

That being said, ThinkGeek operates under various fan bases to sell relating merchandise to movies, video games, etc….the point is that the site always asks permission before selling merchandise.

IAmNotYourLawyer (profile) says:

Re: Re: Re:2 Re:

The analysis above is about trademarks. The New Kids on the Block quote is from a trademark case.

There is a fair use doctrine in trademark law. If you’re a mechanic, you can say “we repair Toyotas” without a trademark issue. News organizations can report on the Boston Marathon, a trademarked term.

The point behind trademark protection is to prevent consumer confusion. If I start selling “louis vuitton bags”, that aren’t actually louis vuitton, then consumers are deceived about the source of the product. But a “louis vuitton inspired bag” is something different because there’s no expectation that it’s actually from louis vuitton.

So long as the hat sellers are making it clear the source of these hats is not Fox (or fox licensee), then they’re probably fine.

Wally (profile) says:

Re: Re: Re:3 Re:

I should be a bit more clear. I do agree with you on trademark laws…but what I’m seeing is people misguidedly looking at this from a copyright perspective. The point is that this falls under merchandising trademark jurisdiction concerning sales of replicated fan made items and is in no way a copyright case. Copyright would only fall in if people were saying that they made it specifically for the show and are selling outside of Fox. The merchandise is intellectual transitive work being sold and Fox, being the dicks that they are, are claiming copyright rather than licensing infringement.

If it were actually copyright, the salespersons would be called out on the use of the words being used rather than the product. Since it is a stop and desist notice/request on a product rather than the words, no matter how Fox botched up the filing, it is trademark clauses alone that can make this case.

I do agree with you that the takedown is in fact bullshit…but many others see this as a patent or copyright case when it really isn’t. As I have cited on many of my comments…this is the EXACT reason Lucas Films kept the merchandising rights to StarWars out of the control of 20th Century Fox.

Anonymous Coward says:

Re: Re: Re:4 Re:

Trademark, copyright, patent… who cares? They are all layers of the turd sandwich we call intellectual property. Why confuse the issue by nitpicking which one it actually is? I don’t care if you call it the Code of Skippitydoodah. It is evil and should be killed with fire.

IAmNotYourLawyer (profile) says:

Re: Re: Re:5 Re:

People should care because they address difference aspects of our lives, have different standards for liability, and have difference defenses. Lumping them all together and calling them evil doesn’t accomplish anything.

Patents address invention, copyrights address creative expression, and trademarks address consumer confusion. If you don’t think there should be any patent protection, fine- but don’t expect there to be much in the way of pharmaceuticals when you have an infection or disease. If you don’t think there should be any copyrights, fine- but don’t expect the next season of Game of Thrones or whatever media you’re enjoying today- Kickstarter ain’t going to fund the Avegners 2. If you don’t think there should be any trademarks, fine- but don’t expect that “Intel” or “AMD” processor to actually work that well or your next “Coke” to taste like you expect.

The balance of protections may be out of whack, but personally I prefer the current system to no IP protection at all.

Anonymous Coward says:

Re: Re: Re:6 Re:

Lumping them all together and calling them evil accomplishes accurate categorization. They all address the process of claiming ownership of ideas, hence “intellectual property.” So yes, it accomplishes something. It accomplishes an overall category of something to eliminate when taking you corporate sympathizers to task.

Should I even address your second paragraph that consists purely of false dilemmas? They are all essentially the same “Piracy is killing Hollywood” defense. Only a total ignoramus would believe that it would rain cats and dogs if there was no intellectual property at all. Somehow these industries still continue to survive when these things can all be duplicated.

I could go out and label a can “Coke” right now and sell it to a limited market, and do so possibly without repercussion if nobody reported me. I’m not going to be able to compete with Coke under it’s identity, so organically I will want to chose another name if I am looking for a signifigant profit. What copyright sympathizers like you are worried about isn’t that my Coke won’t taste like Coke, but that it will. You are worried that your beloved corporations would only have a fraction of the profitability once I am able to go on a corner and sell my Tech Dirt Reader Cola on a street corner and have it so it is not only could taste like Coke, but possibly improve upon the formula making Coke obsolete. As for the rest, there are still laws that prevent false advertising without copyright. I could sue a person if they sold me a processor that didn’t perform the way they promised. What makes people like you crap their pants is if it did exactly what it was supposed to. This just one more example about trying to maintain the ability to have a monopoly on production of a product.

Hollywood and the rest of the content industry hasn’t crumbled under the weight of piracy as it has deceitfully claimed all these years, and has in fact grown exponentially since the widespread use of file sharing. While Kickstarter is still young and there is no telling the scope of projects that will pop up in the future is, you aren’t going to need them to fund Avengers 2, Game of Thrones, or whatever media you are into. Again, they just want the monopoly on content production.

Also your scaremongering that patents would lead to the end of medicine is just absurd. Last I checked society has a vested interest in healthcare. Just by virtue of being able to produce mass quantities of pills big pharma will be profitable no matter what. All the current sector of big pharma has to worry about with the absence of patents is free market capitalism and healthcare being more affordable to the needy. In the unlikely event current companies fail under the weight of new ones, well the people in those companies will still need jobs and probably won’t be out for a career change. Again, all intellectual property is doing is protecting monopolies on production.

In short, intellectual property an enemy of a free society. It is evil, and should be destroyed.

IAmNotYourLawyer (profile) says:

Re: Re: Re:7 Re:

I’m not going to be able to compete with Coke under it’s identity, so organically I will want to chose another name if I am looking for a signifigant profit. What copyright sympathizers like you are worried about isn’t that my Coke won’t taste like Coke, but that it will. You are worried that your beloved corporations would only have a fraction of the profitability once I am able to go on a corner and sell my Tech Dirt Reader Cola on a street corner and have it so it is not only could taste like Coke, but possibly improve upon the formula making Coke obsolete.

How exactly are current IP laws stopping you? You’re free to go out and make and market Tech Dirt Reader Cola right now- well, you’d have to get approval to use the Tech Dirt name, but there’s no Coke problem. If you come up with a better tasting cola, or even one that tastes exactly like Coke, IP laws aren’t stopping you. I’m not worried that you’ll make a better drink- I would be thrilled if you made a better drink.

What I would not be thrilled about is if I went to store and bought a can of “Coke” that was filled with Tech Dirt Reader Cola instead. And would you be thrilled if, after you established Tech Dirt Reader Cola as a reputable brand, I went out and sold cans of Tech Dirt Reader Cola filled carbonated anchovy juice? The whole point behind trademarks is to reduce consumer confusion.

While Kickstarter is still young and there is no telling the scope of projects that will pop up in the future is, you aren’t going to need them to fund Avengers 2, Game of Thrones, or whatever media you are into. Again, they just want the monopoly on content production.
Of course they want a monopoly on production- every company wants a monopoly. But that doesn’t mean the alternative is better. Moreover, if you want to make an indie now, that’s fine- use a patron, use kickstarter, use whatever you want for funding.

Last I checked society has a vested interest in healthcare. Just by virtue of being able to produce mass quantities of pills big pharma will be profitable no matter what.
Uh, no. The margins on generics is pretty poor. And as far as society goes, there are 50mm people without health insurance in the US, we have the about the highest infrant mortality in the developed world, and universal coverage is a political non-starter. So, yeah, society has a vested interest, but that doesn’t mean we’re going to do anything about it.

Sure, getting rid of patents will certainly drop med prices today. I’m just worried about the next year and the next decade. Why should any company do original research or development? The major cost of making a new drug is all up-front; the actual production costs are relatively minor. So if I can copy your new drug and drive the price down to production costs, what’s the incentive for you to do the research? And don’t expect the government to step in. The US pharma industry spends ~$70B on R&D, and I don’t think the govt would make that up.

Copyright and patent laws address a major market failure- free riding. Without patents and copyrights, companies and individuals will pass on making some new goods that would make society overall better off because they personally cannot capture sufficient returns. For these things where the first object to make is expensive but the subsequent ones are all cheap, the ability of competitors to drive the price down becomes a curse and not a blessing if the initial investment cannot be recovered.

Make the case that a world without IP would be better, not just that the current one is bad.

crade (profile) says:

Re: Re: Re:8 Re:

How about a case for the current one is bad because of IP?
IP doesn’t really exist, anyway, it’s just a trick of words.

Trademarks are supposed to be the exception, because trademarks, like you say, are supposed to be about ensuring honesty in business. Even that is now getting sullied as trademarks are starting to be used to suppress competition instead and cause other general grief with that “dillution” crap.

You don’t need to make a case for how it would be better without IP. It’s been getting worse and worse the more influence the mafiaa dudes get over the laws. It would be nice if they fixed some of the things really making us miserable, but it was better before, even to just stop making things worse would be nice. You can still call it “IP” if you really want (although it’s a deception).

Anonymous Coward says:

It’s probably just me, but nothing in Mike quoted from thinkgeek supports Mike’s assertion that ThinkGeek are “happy to compete with the homemade sellers”.

What he quotes at best says that they don’t mind you making your own (which is and always has been absolutely okay even with current IP law), it doesn’t mention – and then selling them(which is the issue).
It does however say that for people unable to make their own, ThinkGeek will sell them to them, with no mention of competition from any non-licensed source.
“if people want to make their own, shiny. For those out there who can’t knit to save their gorram lives, we can help.”

It’s nicely phrased and non-aggressive and I honestly don’t care but it just doesn’t seem to say what Mike seems to think it says.

crade (profile) says:

Re: Re:

making your own has the same legal problems at making it commercially, it’s just less likely that you will be targetted if you are just doing it for yourself. Still definately not OK. To me it’s one of the annoying things about IP law is it restricts what people do in their own homes, affecting no one but themselves.

IAmNotYourLawyer (profile) says:

Re: Re: Re:

There is legal difference.

In terms of copyright, commercial vs non-commericial (private) use is a part of the fair use analysis.

There shouldn’t be any trademark issues in privately making a hat for yourself. No customer confusion.

Patent analysis would be the same I think.

So it’s not just likelihood of being sued- defenses might be better too.

Anonymous Coward says:

Big media’s government established monopoly privileges need to be destroyed. Big media has long relied on the fact that they could do whatever they want and censor their actions from the public so that no one would know through the abuse of their wrongfully granted monopoly privileges. This privileges need to be removed. Abolish govt established cableco and broadcasting monopolies.

RD says:

Re: Re:

“To OOTB: Do you ever get bored of sounding like an ignorant ass, or are you paid well for that?”

He’s obviously getting paid for it because a) no one could be as defiantly stupid as he is (100 MILLION unemployed in the US? That right there disqualifies anything else you have to say about anything.) and b) having FAILED at his own endeavors and being a general failure in life, this is the only thing he is qualified to be paid for: raving, foaming-at-the-mouth ShillPiece spouting outright lies and FUD.

Anonymous Coward says:

“See? Now that’s a reasonable attitude to take. But big media companies like Fox tend to employ lawyers who aren’t known for their “reasonable takes” on things, no matter how much goodwill it might destroy among fans.”

I hate to say this, but if there is such a thing as an attorney with a reasonable attitude it is only because they haven’t been paid enough to take a more extreme attitude.

Anonymous Coward says:

Since the product has been licensed out by Fox, they have a legal obligation to send out the cease and desist notices. I find it interesting that ThinkGeek is taking the higher moral ground here, when the threat of them suing Fox for noncompliance is the reason the cease and desist order went out in the first place. Get a clue, people! This whole thing is more of a publicity stunt than a real legal action. We have people starving world wide. Theres war, death, destruction and terrorism in the news daily and you are all going to get your panties in a bunch over a gorram hat?! And we wonder why the world is so messed up.

Anonymous Coward says:

Re: Re:

With regard to your statement: “Since the product has been licensed out by Fox, they have a legal obligation to send out the cease and desist notices”; no, they really don’t. What the lawyers did was a choice, and a bad one.

If Paramount had had that same attitude in the early 70s, there would have been no Star Trek franchise cash cow for them to milk for the past 35+ years. The fans gave value to their product. Without fans, their product has ZERO, ZIP, ZILCH value.

NV says:

Re:

My understanding is that FOX never even aired the episode with the famous hat. It was only after viewing the DVD did it become popular. Would love to know Joss’s take on all this.
My daughter wore the one I knit for her, proudly to the fan-fest last year. She had lots of compliments and inquiries about where she got it. Where are the ”legal’ hats made I wonder and by whom? People who love the show and take the time and care to pick the colours and knit it, or some third world, crappy yarn with crappy workmanship.

Anonymous Coward says:

“The way we see it, if people want to make their own, shiny. For those out there who can’t knit to save their gorram lives, we can help.”

There were already sources for those who couldn’t knit. On Etsy, Ebay, ArtFire, etc… You also admit you helped them develop the darn thing, just keep digging the hole. Oh, and Ripple Junction and Fox still get paid even of they donate their profit margin on the forst batch they got from their Partner (Again,m helped develop it, Ripple is merely a Supplier, they requested and ordered them…

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