Contacted by attorney representing UNL

Blackshirt

Blackshirt

Team HuskerBoard
I received a letter the other day from a firm representing UNL. They're requesting that I stop providing wallpaper via huskerwallpaper.com, and also remove my banner from huskerbay.com

The thing is, I could see their argument on some of the wallpaper, but the copies they provided as references were images that people very well couldve taken themselves, and then added their own design to create the wallpaper. So doesnt that technically make those copyright material of the people who designed them? Example of complaint: http://www.collegesportsinc.com/huswall/20...or-Champion.htm

The other thing I think is bogus is the request to change my banner on huskerbay. Its the same freakin pic of Memorial stadium thousands of other people have on theirSPACE. And how do they know I didnt take that picture? They're saying it could deceive people into thinking Im affiliated with UNL. Utter rubbish. Apparently they didnt notice the disclaimer on the bottom of the site. or the fact that I designed the site 5 yrs ago when I was taking special-fred design classes.

I certainly dont want to get into a legal battle, and have better sh#t to do and make money from, but at the same time dont want to compromise the sites, and allow them to walk all over me and set a precedent, b/c where does this end? If they use the same approach, they will soon be sending a neverending list of sh#t to remove from huskerboard as well. My thought is they are probably sending out quite a few of these, just to see who they can intimidate into complying, when they probably realize they dont have much of a legal foot to stand on if it came to that. Or do they?

Im going to give this firm a call to discuss a few things, but first wanted to get some opinions from you guys. Im going to ask them what is appropriate content, if I can simply add another type of disclaimer (which isnt in font 86 RED on the top of my page), and what law exactly allows them to claim ownership over personal pictures - and if they plan to pillage every Husker site on the INTERWEB to rid it of all the other evil doers.

 
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They have to tell you exactly which images are violating their copyright and why. Like you said, you could have taken those pictures yourself. They can not tell you to just shut down a site.. I haven't looked through all the wallpapers but I'm thinking one area you might want to go ahead and act on is any images that contain the huskers logo, they do own that and can tell us not to use it in any way <- the images that is. As far as your signature is concerned, they might have a case. They have the term blackshirts trademarked. That kind of sucks for us. You might want to think about changing your sig. I'll let Frank take it from there.

How up on patent and trademark law are you Frank?

 
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Guys, I'm sorry I haven't responded sooner - just after I sent the email about the March Madness contest I fell ill with what the doctor diagnosed as "flu-like" symptoms. Just have gotten back on-line.

Chad, I think you are correct in your belief that the firm is probably doing a mass mailing to any and all sites that are Husker related. It's the cheap, easy way to show results for billable hours, after all. More importantly, if a trademark holder doesn't "vigorously enforce" the trademark, the ability to do so later can be lost. And I also agree with you about contacting the firm.

The one thing you want to do is be very approachable on this with them - you may win a legal battle, but you're far better off coming to a mutally agreeable resolution. I love Joe's suggestion - tell them that you certainly don't intend to violate any trademark or copyrights, and ask them for a list of each. Not just "reference" material - you want to know what, specifically and in their eyes, constitutes a violation. As you noted, innumerable private pictures are posted daily on the web that capture UNL images.

Almost certainly, the alleged violations are for trademarks rather than copyright. Copyright is used to protect original creations of intellect, such as music, books, paintings and the like. Trademark, conversly, is used to "brand" a design, phrase, and so forth. So ask what is trademarked, and what is copyrighted. It is possible, but unlikely, that both could apply in some cases.

Ultimately, the purpose of a trademark is to ensure that the public isn't confused. For example, if you buy a t-shirt with the "N" symbol on it, you might reasonably expect that the shirt was produced by, at the request of, or with the permission of, UNL. If someone didn't have permission to do that, and started selling a cheap shirt, the University could reasonably argue that there is an infringement.

But it ain't a copyright, which protects that actual content. Trademark is for branding. With a disclaimer, there is little to no danger of the public confusing your offerings for UNL goods or services.

Still, your best bet is to go easy on this. Be concilliatory long enough to get a firm idea of what they consider to be trademarked or copyrighted. Then ask them specifically when the use of a trademark is not a violation - can posting a privately taken picture of a UNL player in action violate the trademark because it displays the "N" on the helmet? If they say, "Yes", then at that point you need to fight - there is no way in hell that such a use could cause confusion in and of itself.

 
Ok, I contacted this firm a couple wks ago, sorry for not posting an update sooner. heres a quick synopsis.

The main issue is that my sites are allegedly "distributing" content which includes TM'd images -- I asked how this was different from the 1,000s of other blogs out there where people post the same pics everyday, and what I gathered from his jibber-jabber answer was that its on a discretionary basis - so in essence, UNL, and/or another licensee decided they were losing traffic to my sites, mostly huskerwallpaper.com, so cried foul. And from what I understand, the sites are technically infringing, so if they wanted to push it, I would lose.

Heres my hunch. Since he repeatedly referred to "other licensees" and how it "wouldnt be fair to them" to allow me to just post a disclaimer on each wallpaper, Im pretty sure someone like Rivals ratted me out. And Im almost certain they own a license to distribute, since they're so high profile, and also do husker wallpaper they probably looked at it as an easy way to squash their competition.

The other thing he stressed was that UNL has given them strict orders to pursue sites that are distributing content which includes their TMs and any CURRENT student athletes. Must be some type of "amateur / NCAA" code theyre trying to uphold. And in so many words, he basically said any wallpaper that doest have either of these 2 things in them woudl be acceptable. which pretty much eliminates them all, but at least I got a definition of "in violation".

My conclusion - I dont feel like dealing with a big mess, so Im just going to take the site down, and re-design my huskerbay banner.

Now if they were to target huskerboard, and start demanding we police all of our members signatures etc., thats where I'd have to swing back. but at this point, huskerwallpaper.com had a nice run and I'll move on.

Thanks for your input guys.

 
Damn. Sorry about that - I have a bit of an issue with "using images of current student-athletes"; there have been ocassions where universities have asked someone to take down a fan site of a player to avoid NCAA sanctions, but a picture of a current student-athlete is neither a copyright nor a trademark violation so long as the image doesn't include legitimately copyrighted or trademarked images.

Still, you're probably doing the best thing. Have you considered asking them what a license would cost?

 
I hear ya, theyre probably just trying to get a 2 for 1 while theyre at it. I didnt ask about the cost, but if its the same as a "print license", some t-shirt shops in Omaha told me it costs roughly $20K / yr, which is why many cant print anything remotely related to the skers, or even use red for that matter.

 
I'm bubbling this topic back up due to the question in THIS POST concerning the new banner contest. My view still remains the same - a picture of a current student-athlete is not a trademark infringment. But given what the attorney for UNL stated, I'm not sure we want to tell anyone it's okay. We might just want to say that we don't think it's a trademark violation, but if contacted by the University about it we may have to revert to the current banner or a different banner.

Anyway, before responding, I thought we needed to mull this one over.

 
Good question. Id say lets just allow it and play stupid if it comes to it. But Im guessing if they were going to attack the message boards they woulda already contacted me by now. seems theyre kinda giving these type of sites an exemption, probably due to the dynamic nature. at least for now.

 
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