Godzilla trademark quandary

May 9, 2006 5:30 PM

I have some copyright and trademark questions for the fine folks at AskMe. Ok, so I run this online t-shirt store and I had a design based on Godzilla playing the drums. I know some of the Godzilla movies had passed into the public domain, so I just assumed (or perhaps hoped) that would place my design firmly into fair use territory. Welp, I got a cease and desist from the folks that own the trademark and copyright on Godzilla, so I was just hoping to find out more about my options here.

First of all, anyone here familiar enough with trademark/copyright law to let me know if it is even worth fighting? And if I choose to fight it, what should I expect in terms of costs? I've never hired a lawyer so it's all quite foreign to me. If I win, can expect any costs to be reimbursed? If I just want to change the design enough to be considered "legally distinct" how much would I have to change things (Or how much should I expect to pay a lawyer to answer that question)?

Has anyone gone through a similar situation, that would like to share their tale?

Thanks much.

posted by Jezztek to law & government (27 comments total)

How much money have you made off this shirt? How much money do you expect to make? If it's more than you want to lose and spend on a lawyer, then don't fight it and stop using the image. If you win this sort of civil suit there's no reason you'd be entitled to court costs/attorneys fees, unless the Godzilla owners did something egregious. I work for a firm of intellectual property lawyers. If you need a referral to an attorney in your area, I can provide one.
posted by MeetMegan at 5:34 PM on May 9, 2006

Oh yes, and IAAL, but not your lawyer. Take my advice with a grain of salt, etc.
posted by MeetMegan at 5:36 PM on May 9, 2006

Your best options: cease and desist.
posted by megatherium at 5:48 PM on May 9, 2006

Well I've certainly already ceased and desisted. I'm sure no matter what I choose down the line, I don't have the cash on hand to fight things now.

So the public domain thing doesn't really make a difference?
posted by Jezztek at 6:02 PM on May 9, 2006

The character is not in the public domain, and honestly, I doubt the movies are in the public domain no matter what you've heard. Copyright law protects movies for a lot longer now than it used to.

So, yep, take it from another non-lawyer and get to ceasin' and desistin'. I don't think you have a giant monster lizard leg to stand on.
posted by j-dawg at 6:08 PM on May 9, 2006

Don't know how feasible this is for you, but consult a lawyer. Why not? If you're willing to see how serious this could get, send them a letter asking them to show you the copyright. Look into fair use regulations, and so on. If I received a letter out of the blue asking me to remove things, I would try to do something before I just rolled over^*. It's also my understanding that large corps like to bully people into submission (ie: RIAA, thepiratebay.net examples). Bottom line, act based on how much you might lose. If this store is your livelihood by all means roll over.


^*: maybe i'm just being a keyboard warrior though.
posted by aeighty at 6:11 PM on May 9, 2006

It just looks like a generic dinosaur to me...can't you just call it "dinosaur drums" or something?
posted by leapingsheep at 6:19 PM on May 9, 2006

IANAL either, but both the visual appearance and (more importantly) the name "Godzilla" will be trademarked. Your site was using both. You could probably just change the name of the design to "T-Rex Drummer" and slightly change the image to something less 'zillaesque and be fine.
Of course, then your design will not have the same impact as the Godzilla image, but that is the whole point of trademark law.
posted by AndrewStephens at 6:19 PM on May 9, 2006

Free legal advice is worth what you pay for it. Call a lawyer.
posted by caddis at 6:31 PM on May 9, 2006

Copyrights do expire (eventually, about the speed with which glaciers melt, but eventually) but trademarks do not. Trademarks are eternal but only if the trademark holders defend them actively. If they do not, trademarks can be judged to have passed into the public domain and trademark holders can lose control of them.

That happened in the US with the trademark "Aspirin", which used to belong to the Bayer corporation. Everywhere else in the world, "Aspirin" is a product made only by Bayer. Everyone else has to call their equivalent product something else.

There have been a couple of other high-profile cases like that. The Coca-Cola corporation was near to losing the trademark "Coke", which is why they began to crack down heavily on everyone and why you're really tired of hearing, "Is Pepsi OK?" at restaurants. It's because Coca Cola started threatening everyone with lawsuits when they served Pepsi to people who ordered "coke".

Kimberly-Clark also had trouble with this, and for a while was at risk of losing control of the "Kleenex" trademark.

The people who C&D'd you aren't being malicious. Like as not they don't give a damn, except that if they're not vigilant about this kind of thing and don't actively defend their trademark against small-fry like you, that can be used as evidence in court against them by big-fry like rival studios to show they're not defending the trademark, and they can lose control over it entirely and suffer great financial harm as a result. That's why they pretty much have to beat up people like you, whether they really want to or not.
posted by Steven C. Den Beste at 6:31 PM on May 9, 2006 [1 favorite]

You should be able to get a free short initial consultation with a copyright lawyer. Do that much, at least.
posted by mediareport at 6:33 PM on May 9, 2006

If Godzilla is (or was) public domain, EFF might be willing to help you.

I dunno Godzilla lore, so maybe this is a deeply specific pop culture reference that only works one way. But if not...couldn't you just solve the problem by selling the image as "Dinosaur playing the drums" instead? Still funny.
posted by nakedcodemonkey at 6:34 PM on May 9, 2006

The length of the copyright term (or duration) within the United States was extended by the Sonny Bono Copyright Term Extension Act, which made the copyright term (for works created after 1977) the life of the author plus 70 years, or 95 years for a work of corporate authorship.
-Wikipedia

Godzilla was released in 1954. Either it is considered the work of Toho Film Company, putting it at 2049 or of Ishiro Honda (died 1993), putting it at 2063.

A good rule of thumb is, if it wasn't around before Mickey Mouse, it's not in the public domain. (This is because Disney has been instrumental in changing the law to keep him.)
posted by Margalo Epps at 6:34 PM on May 9, 2006

The IMDB lists the earliest King Kong movie as being released in 1933. According to the indispensible copyright chart put together by Peter Hirtle of the Society of American Archivists, it is only in the public domain if it was either published without a copyright statement and never subsequently registered with the Copyright Office or registered at publication but never renewed. Neither of these scenarios seem at all likely, so I think you're wrong that any of the movies are in the public domain. Of course, the copyright status is not the same as the trademark status, which, as Steven Den Beste points out, is dependent on how the trademark has been defended. The merit of the case also depends on how you're using the trademark, etc., but basically I don't think it would be very productive to fight this.
posted by IshmaelGraves at 6:40 PM on May 9, 2006

It just looks like a generic dinosaur to me...can't you just call it "dinosaur drums" or something?

DrumZilla?
posted by weston at 6:49 PM on May 9, 2006

Even if the early Mickey Mouse short films do enter the Public Domain the Mickey Mouse character is still covered by copyright. Some believe you'll be able to use exact stills or portions of the original short films without violating copyright, but Disney will still probably sue you for doing so. It will have to be decided in the courts exactly what it means when a trademark's early works enter the public domain.
posted by IndigoSkye at 6:53 PM on May 9, 2006

Fair enough, I can tell when I'm licked.

Thanks much.
posted by Jezztek at 7:32 PM on May 9, 2006

I bet you can't wait until you get another cease and desist for using someone's version of dracula.

These are sad, sad times for the public domain.
posted by odinsdream at 8:37 PM on May 9, 2006

That's why they pretty much have to beat up people like you, whether they really want to or not.

This is a bit off-topic, but I feel compelled to say that a statement such as this ("they have to beat you up because . . . ") strikes me as clear evidence that something, somewhere, in the world of copyright law, has gone terribly wrong.
posted by treepour at 10:07 PM on May 9, 2006

You've got some creative shirts there, but a couple others might be flagged by other movie industry lawyers as targets too. Watch out.
posted by vagabond at 10:11 PM on May 9, 2006

Too bad, it's a great design. I'd wear it.
posted by samh23 at 10:30 PM on May 9, 2006

Too bad, I loved that shirt.
posted by delmoi at 11:22 PM on May 9, 2006

I bet you can't wait until you get another cease and desist for using someone's version of dracula.

Isn't dracula public domain?
posted by delmoi at 11:25 PM on May 9, 2006

Seriously... Make it a bit less Zilla-esque, call it Drumasaurus Rex, and you've got a product to put back on the market. And some customers from this thread (myself included). And delmoi: I think it's because he used a still frame from some Dracula movie for his "design removed" image that odinsdream mentioned getting in trouble for using Dracula. :)
posted by antifuse at 2:08 AM on May 10, 2006

AndrewStephens writes "change the name of the design to 'T-Rex Drummer'"

Not unless you want the RIAA coming after you... You'll need to modify the design quite a bit more, to make it not look like Godzilla, besides just changing the name.
posted by caution live frogs at 5:15 AM on May 10, 2006

Yeah, I think I'll modify it into a more traditional T-Rex, or Stegosaurus and rename it sometime next week.

Thanks much.
posted by Jezztek at 10:16 AM on May 10, 2006

I'm surprised nobody mentioned the Davezilla Affair a couple of years back. Hundreds of blogs (mine included) were renamed with a -zilla suffix for a while. He appears to have been allowed to keep the name.
posted by stavrosthewonderchicken at 1:16 AM on May 11, 2006