'For Novelty Purposes Only'

[George Brown]

Dear all,

Can anyone shed any light on to what type of legislation the above statement is trying to circumnavigate re-the replication of testamurs from bona fide institutions?

I know John Bear has mentioned previously that a sticker could be peeled off of his Harvard degree when he bought it, and this statement appears on many of the replica testamur provider's websites. Is it to try and avoid copyright infringement? Any details to legislation, relevance to law etc would be greatly appreciated.

Cheers,

George

[Robert J.]

Dear all,

Can anyone shed any light on to what type of legislation the above statement is trying to circumnavigate re-the replication of testamurs from bona fide institutions?

I know John Bear has mentioned previously that a sticker could be peeled off of his Harvard degree when he bought it, and this statement appears on many of the replica testamur provider's websites. Is it to try and avoid copyright infringement? Any details to legislation, relevance to law etc would be greatly appreciated.

Cheers,

George


Do you mean "Novelty" ? (I'm not trying to be the Grammar Police and hate schmucks who play that to take jabbs at people).

I just see the "Novelty" as a very simple legal premise of "meeting of the minds" in the form of a contract. "We sell to you based on this parchment being a Novelty...see we even put a sticker on the parchment !"..."What you thought it was something else? Despite of our sticker? (contract)....that's your problem! (contract null and void- no meeting of the minds)". I am probably over simplifying things a bit but I see it as a form of establishment of "CYA" on the replication printers part. As far as whether it's still legal for them do to printing re: Copyright of School names etc, I am not aware of any legislation or laws specifically to address this (not sure it would need something specific outside of standard copyright laws).

[George Brown]

I did mean Novelty - sorreee!

OK, some great points. So contract law comes into along with copyright issues.

Cheers,

George

[Robert J.]

I did mean Novelty - sorreee!

OK, some great points. So contract law comes into along with copyright issues.

Cheers,

George

No Problem. Fixed the thread title.

[Robert J.]

I did mean Novelty - sorreee!

OK, some great points. So contract law comes into along with copyright issues.

Cheers,

George

Well I see two points of liability on the part of replication printer.

1. Printing a Degree and not being a University. (Novelty Sticker comes into play here...could be fair use/free speech.)

2. Copyright/Intellectual Property of printing the diploma in the name of the school. (Novelty sticker wouldn't matter here), especially damning if selling a service although not required.

I can't see why it wouldn't just fall under #2 using standard copyright laws. Once found #2 was an illegal act #1 would fall too making it an illegal contract with potential liability on the customer too.

[marilynd]

Well I see two points of liability on the part of replication printer.

1. Printing a Degree and not being a University. (Novelty Sticker comes into play here...could be fair use/free speech.)

2. Copyright/Intellectual Property of printing the diploma in the name of the school. (Novelty sticker wouldn't matter here), especially damning if selling a service although not required.

I can't see why it wouldn't just fall under #2 using standard copyright laws. Once found #2 was an illegal act #1 would fall too making it an illegal contract with potential liability on the customer too.

Actually, I think the operative legislation in this instance regards trademarks (perhaps more opropriately, service-marks), rather than copyright. The intellectual content of diplomas is roughly similar and so could hardly be copyrighted, or actionable if they were copyrighted. The issue is whether or not there is an infringement of trademark/service-mark. Three questions seems apropos:

1. Did the business in question print and sell a diploma which purported to be from University A?

2. Was the layout of the diploma such that a reasonable person would infer that it was awarded by University A?

3. Did the business in question not have permission of University A to print and sell said diploma?

If the answer is yes to all three questions, there is prima facie evidence that trademark/service-mark infringement has occurred and so would be actionable. The novelty phrase would not be a protection against trademark infringement (especially if it was removable or could be easily covered up in framing), since no permission existed.

The contractual "meeting of the minds" defense would pertain, in seems to me, particularly in the selling of diplomas from fictitious schools, since there would be no trademark issues.

"What? You thought that this was a real degree from a real university? Sorry! The diploma states clearly that it is a novelty item."

Hope this helps.

marilynd

[marilynd]

Sorry.

"opropriately" should be spelled "appropriately."

marilynd

[Robert J.]

Actually, I think the operative legislation in this instance regards trademarks (perhaps more opropriately, service-marks), rather than copyright. The intellectual content of diplomas is roughly similar and so could hardly be copyrighted, or actionable if they were copyrighted. The issue is whether or not there is an infringement of trademark/service-mark. Three questions seems apropos:

1. Did the business in question print and sell a diploma which purported to be from University A?

2. Was the layout of the diploma such that a reasonable person would infer that it was awarded by University A?

3. Did the business in question not have permission of University A to print and sell said diploma?

If the answer is yes to all three questions, there is prima facie evidence that trademark/service-mark infringement has occurred and so would be actionable. The novelty phrase would not be a protection against trademark infringement (especially if it was removable or could be easily covered up in framing), since no permission existed.

The contractual "meeting of the minds" defense would pertain, in seems to me, particularly in the selling of diplomas from fictitious schools, since there would be no trademark issues.

"What? You thought that this was a real degree from a real university? Sorry! The diploma states clearly that it is a novelty item."

Hope this helps.

marilynd


Very good points mailynd. I haven't thought about this thread recently but yes I agree Trademarks vs. Copyright is a better and more appropriate angle to pursue and I would see no reason for separate legislation for school diploma protection.

It's still an interesting question if a legitimate degree holder of said school can find a re-printable means for their lost diploma under some fair use on their own without having to go back via the school. I also used to work in the printing industry, we used to get jobs for Business cards, signs, banners, advertisements, with all kinds of logos and trademarks etc. and we never checked to see if the Nightclub was authorized to print "Budweiser Ladies Night" on an ad or banner. That's not say as us the printer was legal and not infringing in doing that, it would just be another found example (and anecdotal) where to me such examples exist and happens thousands of times per day.

Your thoughts?

[Robert J.]

Sorry.

"opropriately" should be spelled "appropriately."

marilynd


Don't worry marilynd, you'll never find the grammar/spelling police here.

[George Brown]

Thanks to all - these are all great posts.

Cheers,

George

[marilynd]

Robert:

Sorry that it took some time to respond. I don't check this board as frequently as I should.

The topic of fair use is an interesting one, although I'm not sure how far it applies with regard to trademark vs. copyright. Trademark issues are by definition, I suspect, commercial in nature, whereas fair use in copyright (Titles 17 & 18) specifically delimits private or educational use from commercial use. Trademark law exists chiefly to protect company or organization assets by protecting the use of its public image. In practice, where there is no perception of harm, the institution will usually not pursue infringement. I am not a lawyer, but it may be that where there is no harm there is no infringement by definition, though I suspect this may be too strong a statement. One would have to look at the specific wording of the statute. It is hard to imagine a case, for instance, in which Budweiser would go after a bar or its printer for printing and displaying "Budweiser Ladies Night" signs, even if the bar did not serve Budweiser or did not otherwise have permission to do so. It's free advertising. It is conceivable that this might happen, say if there was a dispute between the company and the bar such that the company did not want its name or logos identified with the bar, but such cases would be rare. Even here, I would think, action against the printer probably wouldn't be successful, since there is probably some sort of good faith presumption that those who display trademarks in their business literature have permission to do so.

However, things like licenses, degrees, and other types of credentials may fall into a different category than Budweiser signs. To take an extreme example, printers wouldn't make you a copy of a lost driver's license or passport or license to practice medicine. If they did, they would be in big trouble fast. Now, in these cases, the right to print and distribute these documents is covered by statute. That is because the state needs to be able to control who holds and who does not hold its credentials. In a less clear-cut instance, colleges and universities survive as institutions because they control the awarding of degrees from that institution. They therefore have a vested interest in the printing of their diplomas. There is little likelihood, IMHO, that they would loose an action against a printer that was selling their diplomas.

The case of a graduate who wanted to replace a damaged diploma is murkier, of course. The central issue, it seems to me, is whether the graduate has permission to use the trademark or the printer can presume that the graduate would have permission. The printer would be copying not only the banner and layout of the diploma, but the college or university seal as well. It is clear enough, it seems to me, that being a graduate does not in itself given one permission when and where the university seal will be used. If it did, we could print our own official transcripts. If it did, the very survival of the institution would be threatened. While you would not have a problem finding a printer who would print a Budweiser or IBM or MacDonald's logo on another company's advertising literature, I suspect you would have a more difficult time finding a printer to print a copy of a Harvard diploma. (Harvard, by the way, takes that position that no more than one diploma may exist per degree award. If you want it replaced, you must return the one it is replacing first, or submit an affidavit of some sort stating the reason that it cannot be returned.)

In practice, chasing down diploma printers is probably more trouble and costly than it's worth to the universities. There are companies out there, as you know, that will print you an exact duplicate of a real Harvard or Princeton or Michigan or Bemidji diploma, complete with your name, choice of degree, and choice of date on it. This is perhaps why, unlike the UK and the Continent, for instance, the diploma itself carries less probative weight than the transcript in the U.S. (and, as a result, now fake transcripts are being sold with fake diplomas). This does not mean that the practice is not actionable, however.

One analogy with copyright infringement here is perhaps applicable. In a famous lawsuit (from the early 1980s, as I recall), a consortium of publishers sued seven large universities (including NYU, where I began working right after this settlement) Xerox, Kinko's, and several other copying companies for copyright infringement. Kinko's and others were accepting packets of copyrighted materials collected by faculty, copying them, and selling the packets to students. It was a clear infringement but a common practice. It sort of reached a critical mass, and the publishers decided to sue to make a point. One of the principles at issue was whether the copying companies could expect that university faculty would have permission to have this copying done and sold. The answer, of course, was that they could not presume permission, and without express proof, were liable for infringement. So, they settled. Even today, Kinko's is rather testy about copying where copyright issues are obvious (such as bound books). Perhaps if a critical mass is reached and universities feel threatened enough, they may some day take action. It would probably be difficult, of course, because they would be confronting businesses less established and more shadowy than Xerox and Kinko's. Indeed, this may be why they haven't done it before now.

These are my thoughts, for what they are worth.

I probably went on too long, but the subject is a bit of a bog.

Regards,

marilynd