Approaches to Legal Protection

 
Joseph McMillan
 
Avatar
 
 
Joseph McMillan
Total Posts:  7658
Joined  08-06-2004
 
 
 
02 August 2006 08:51
 

In another area of the forum, Ed Wenzl asked:


Quote:

Quote:

Originally Posted by Joseph McMillan

I agree completely that this is a state matter, and there’s a considerable record of debates on this issue in the old forum, if the archives are ever available again. (Not carping, I know T.R.‘s otherwise occupied at the moment.)

That said, I’m not sold, as I once was, on the need for official heraldic registration offices. I think that if some form of legal protection of arms is necessary, it can be secured by less expensive and intrusive means than state heraldic establishments.

 

 

 

Would you please tell us what lead you to that conclusion? I would appreciate your insight. Thank you


Several things, of which the two principal ones were:


<ul class=“bbcode_list”>
<li>A while back I worked up a strawman law that we were debating on what a state heraldic office would look like, and I started working out the numbers that would be necessary to make such an office a going concern.  I don’t remember the specific numbers, but if you take the salaries of a small full-time staff (a director and a secretary) and a modest operating budget and then divide that by a high estimate of the number of registrations that could be processed in a year, you end up with a price per registration that everyone in the discussion thought was too high, and a number of registrations that seemed unlikely.</li>
<li>As I worked up the article on foreign arms registration practices, I found that the legal codes of several countries (notably France and Germany) provide that an armiger can go to court to prevent someone else from usurping his arms.  To prevail, he has to prove that he was using the arms before the usurper, for example by showing that the arms were published in a recognized roll of arms, or that they appear on family possessions that can be dated more or less precisely, or that a formal claim to the arms was recorded in the archives of a civil law notary before witnesses.</li>
<li>I ran across a 1940s case in New York in which a state court held that the use of someone’s arms on a commercial label without his permission was a violation of the state civil rights law, on the grounds that it was equivalent to using his name to endorse the product without his permission.</li>
</ul>
This struck me as a more economical approach, one that has some basis in US law (however tenuous) given the NY case, and one that is less intrusive as well as finessing any objections that the government shouldn’t be in the business of regulating heraldry.  The concept is that if someone usurped your arms, you could go to the local civil court and obtain a cease and desist order against the usurper.  It would be up to each side to prove its prior right to the arms and the court would have to decide who had the better claim.  For example, I might have registered the arms "Argent two bars in chief three mullets Gules" with some private arms registry, and I see someone else using them here in Virginia, so I go to court and produce my registration document to prove that I have registered the arms.  The accused usurper proceeds to prove that he is a male-line descendant of the Washingtons of Sulgrave Manor, that the arms were recorded in the College of Arms before Virginia was ever settled, and that they had been in consistent use by his family in Virginia for some 300 years.  I lose.

 

Our legislative team of Hugh Brady and Dave Shorey has given this whole issue some more thought and this may be a good opportunity for them to comment on other alternative approaches.

 
Hugh Brady
 
Avatar
 
 
Hugh Brady
Total Posts:  989
Joined  16-08-2005
 
 
 
02 August 2006 10:46
 

As a gross oversimplification, the problem with a national heraldic authority is that there is a real question whether or not the U.S. Constitution permits Federal regulation of the noncommercial use of arms. Even if the Federales could regulate arms, a DC lobby effort is very expensive and it’s hard to get attention.

The states probably have the authority to regulate the noncommercial use of arms, but traditionally are hesitant to regulate anything not absolutely necessary to public health and safety that doesn’t generate enough fees/revenue to cover the cost of regulation.

 

However, most states already have a state trademark system in place. The average cost of a state trademark registration is rather low; for example, in Texas, the fee is $50.00, and in Virginia, the fee is $30.00. Also, a couple of states permit the registration of family association insignia, which is like a noncommercial trademark.

 

One thought is to expand the state trademark database to include non-commercial personal marks. Although it would not foreclose all issues of proof in an action to prevent infringement (or usurpation), it does accord the registered user a presumption of ownership that is hard for the infringer to overcome in litigation.

 

A state-by-state lobby effort takes more time, but it would require less money and it would already be building on an existing legal scheme, which means the state isn’t being asked to create something from scratch.

 

Dave, correct any errors or omissions, will ya? smile

 
arriano
 
Avatar
 
 
arriano
Total Posts:  1303
Joined  20-08-2004
 
 
 
02 August 2006 11:26
 

I’ve wavered a number of times on an official heraldic authority. But one has to admit that the many countries of continental Europe seem to manage just fine without one.

 
The Gunny
 
Avatar
 
 
The Gunny
Total Posts:  14
Joined  06-12-2004
 
 
 
03 August 2006 18:56
 

You may also peruse U.S. Copywrite Office. Under Title 17 United States Code. Your Work created after 1Jan1978 is protected for 70 years after your demise. Just a thought.

 
Patrick Williams
 
Avatar
 
 
Patrick Williams
Total Posts:  1356
Joined  29-07-2006
 
 
 
03 August 2006 19:41
 

Copyright may indeed be the best way to go. Copyrighting the blazon along with the image would protect both in one whack and just might be doable. And, 70 years after your death, your heirs get first stab at reupping the copyright, if I remember correctly.

 
Joseph McMillan
 
Avatar
 
 
Joseph McMillan
Total Posts:  7658
Joined  08-06-2004
 
 
 
03 August 2006 19:57
 

Copyright if you want, but lawyers that have considered that route seem unanimous in the understanding that it would protect only the specific emblazonment, and that something as brief as a blazon probably would not rise to the level that the Copyright Office considers as sufficiently original and significant to protect.  Even if the blazon could be copyrighted, there would be no way to keep someone from drawing their own interpretation of the blazon and using it as their own.

Our legal colleagues may wish to weigh in on this one.

 
Hugh Brady
 
Avatar
 
 
Hugh Brady
Total Posts:  989
Joined  16-08-2005
 
 
 
03 August 2006 19:57
 

One of the problems with copyright is that you can only protect the expression of an idea, not the idea itself. So if you copyright the blazon, anyone is free to draw your arms from that blazon. Also, by rewriting the blazon, someone could copyright a blazon that renders arms that are the same as yours. The work must be original, not derivative. For some of us, that may work if it is a wholly original coat of arms without reference to a prior coat—this is a tough burden. For instance, in the case of the "Earth flag," the court invalidated the copyright (or refused to find infringement, I can’t remember which because I don’t have the case in front of me) because it found that the work was derivative of the color blue (in the public domain) and a picture of the Earth taken from space (also in the public domain).

But even if you rearrange the elements of the Smith arms, a court could find that work wholly derivative and invalidate the copyright since it draws its inspiration from the prior coat. Look at mine, Joe’s and Mike McCartney’s. Each of us have explained that on some level, the coat derives from a earlier coat associated with the name and we altered it for our status as indeterminate cadets. Joe’s and Mike’s show more creativity in their treatment of the elements, but in the end, they are still derivative of MacMillan and McCartney.

 

For others who bear arms that have been in the family since before (roughly) 1926, copyright won’t attach because the arms are in the public domain. And in any copryright infringement action, you can get an injunction, but to put some teeth into it, you need to prove and get damages, which I think would be hard to quantify in a non-commercial setting.

 

I won’t delve into other exceptions, such as fair use, which would probably permit me to use your coat in an armorial that isn’t for commercial gain or in a textbook.

 

It probably does give you a tool against a bucket shop, but that’s about it.

 

P.S: Usual disclaimer: Even tho I am a lawyer, this post does not give anyone legal advice nor should it be relied up for the determination of legal rights or remedies, nor does the fact that you read the post create an attorney-client relationship between you and me.

 
Guy Power
 
Avatar
 
 
Guy Power
Total Posts:  1576
Joined  05-01-2006
 
 
 
03 August 2006 22:18
 

Hugh Brady wrote:

P.S: Usual disclaimer: Even tho I am a lawyer, this post does not give anyone legal advice nor should it be relied up for the determination of legal rights or remedies, nor does the fact that you read the post create an attorney-client relationship between you and me.


SHEESH!!  Now you really sound like an attorney.  :D

 
David Boven
 
Avatar
 
 
David Boven
Total Posts:  1063
Joined  29-04-2004
 
 
 
03 August 2006 23:31
 

So would it be possible to take the existing copyright laws and, through some form of legislation, tweak them to include coats of arms as we understand them. Could we use the same principles and say, this is what a coat of arms and blazon are, and this is how they fit into this copyright situation?

 
Chapulin
 
Avatar
 
 
Chapulin
Total Posts:  480
Joined  19-08-2005
 
 
 
04 August 2006 01:56
 

You could copyright the COA as a graphic with the blazon as its title. It’s been 4 months now and I hadn’t received a rejection letter…..yet…. but they did cash my check !?! (fingers crossed)

 
Hugh Brady
 
Avatar
 
 
Hugh Brady
Total Posts:  989
Joined  16-08-2005
 
 
 
04 August 2006 09:47
 

David Boven wrote:

So would it be possible to take the existing copyright laws and, through some form of legislation, tweak them to include coats of arms as we understand them. Could we use the same principles and say, this is what a coat of arms and blazon are, and this is how they fit into this copyright situation?


Well, again, the purpose of copyright is to protect the original expression of ideas, not ideas themselves. This is a fundamental distinction in copyright law (as opposed to patents, where the policy is to protect the idea itself, albeit for a much more limited period of time than copyright). While Disney, et al., would love to be able to copyright an idea, this is an extremely controversial idea. Because if we were able to get it done for heraldry, others would start chipping away at that exception for their purposes and eventually widen it enough to drive a truck through. Plus, as David Shorey and I have explained, a Federal lobbying campaign is an extremely difficult and costly undertaking.

 

Trademark law is a much better fit than copyright law, because the essence of TM law is to protect an identity. (In a commercial context, that identity is the true source of the goods or services offered to the public.) And that’s really what we’re all saying—my arms are my identity; it marks me to the world, and someone using my arms without my permission is using my identity. Federal trademark law cannot be amended to include non-commercial marks—more specifically, marks not used in interstate commerce—because the Congress regulates trademarks not thru a specific grant of power but thru its Commerce Clause powers. However, the states are pefectly free to regulate the use of non-commercial marks, just as they regulate the taking of surnames, etc.

 

Hope this helps. (Usual disclaimer, see above.)

 
Hugh Brady
 
Avatar
 
 
Hugh Brady
Total Posts:  989
Joined  16-08-2005
 
 
 
04 August 2006 09:53
 

Chapulin wrote:

You could copyright the COA as a graphic with the blazon as its title. It&#8217;s been 4 months now and I hadn&#8217;t received a rejection letter&#8230;..yet&#8230;. but they did cash my check !?! (fingers crossed)


I’d like to clear up a general misapprehension of copyright held by the general public. The Copyright Office doesn’t grant copyright. If there is any copyright in a work, copyright attaches, as a matter of law, the moment the idea is fixed in a tangible form of expression,e.g., when you draw the emblazonment. You don’t have to add a copyright symbol or other notice. All the CO does is register the expression and give you a certificate of that fact alone. Registration is necessary to obtain statutory damages.

 

The CO can refuse registration, but that can be overturned by a court. Ditto the other way; a court can void a registration granted to a work that is not copyrightable.

 

So even if they cash your check and issue you a certificate of registration, you may still not have a copyright.

 

As an aside, titles of works generally are not copyrightable—although they may be trademarked.

 

(Usual disclaimer, see above.)

 
Michael F. McCartney
 
Avatar
 
 
Michael F. McCartney
Total Posts:  3535
Joined  24-05-2004
 
 
 
04 August 2006 12:23
 

There seems to be a consensus that a Federal-level registry & legal protection is both unlikely, and likely outside the Federal government’s Constitutional authority.  I’m not a lawyer or Constitutional scholar, but "for aught yet seen" let’s accept that as a starting point.

(Having said that, I would think the Feds could register & protect arms within the sphere of its own military & civil officers, perhaps by allowing them to use those arms in the performance of their duties.  Unlikely they would, but arguably within their legitimate authority.  The obvious question would be "why" except perhaps in the diplomatic or consular service where private seals have been used for e.g. drafts of treaties pending Senate approval & affixing the Great Seal or whatever.)

 

But back to State registration:

Leaving aside for the moment the question of political will, the biggest technical problems IMO would be, in no particular order:

(1) inconsistency between 50 separate state systems,

(2) avoiding duplication between arms registered in different states;

(3) addressing duplications in inherited arms originating from different parts of Europe;  and,

(4) lack of heraldic expertise in 50 separate state registry offices (or even in any one state, given Joe’s cogent comments re: the fiscal & political problems of trying to staff a full-blown heraldry agency while keeping the fees reasonable)

 

I don’t have answers for all of these questions.  However, one approach that IMO would be helpful would be the "Model Legislation" model, in which a (usually) non-governmental expert body draws up a model bill which is then adopted, separately, but the various states, either "as is" or with some local modifications.  An example would be the Uniform Building Code, originally crafted IIRC by the industry, then thoroughly "scrubbed" before being presented to the various states.

 

Another, more on-topic example would be the various state statutes governing the registration & protection of the insignia of non-profit associations.  Which there are of course differences between states, these mainly deal with fees, details of how registered insignia will be protected, and whether or not registrations must be renewed periodically.

 

The shared core of these state laws—defining "non-profit association" (or in some states, "unincorporated organizations"), the language re: who can use ("the association, its individual members, and those hereafter to become members" or words to that effect), and the fact that the insignia is legally protected one way or another—is too similar to be mere chance.  Whether it started in one state & others more or less followed suit, or whether there was a "uniform code" preceding the legislation, I can’t say.

 

However, if (repeat "if") we were to agree that this existing pattern of similar legislation in various states is a useful starting point, then the task of our fledglng legal crew would be to craft the simlest amendment to the shared (actual or de facto) "uniform code" for presentation to the various state legislatures.  It could IMO be as simple as adding a few words to the generally shared definition of "association" to include an organized family or lineage society derived from a common ancestor, or something along that line.  (I rather like the term "armorial family" but that may be a bit much to sell.)

 

There’s more, but that’s a start for now & I do have to get to work…

 
MMCDHoward
 
Avatar
 
 
MMCDHoward
Total Posts:  39
Joined  08-08-2006
 
 
 
08 August 2006 22:10
 

Actually, it would be very expensive to lobby the federal government, but if there are state heraldic organization then there will inevitably be conflict. States are required to recognize a contract from another state, and that would likely apply to arms as well. Without a national level college of arms conflict and court cases will erupt, and that will make heraldry less appealing. I think that writing to our national senators and representatives is a good course of action for the time being, and seeking out people with the resources and willingness to help would be the next logical step.

 
Michael F. McCartney
 
Avatar
 
 
Michael F. McCartney
Total Posts:  3535
Joined  24-05-2004
 
 
 
10 August 2006 20:55
 

The concern re: interstate conflicts, both as to "rules" and conflicting registrations, is of course a major problem.  If (repeat if, but let’s pretend - or at least extrapolate) we could get the suggested Uniform Heraldry Code (there must be a better name) it might have some way of addressing this problem.  As before, take the example of the Uniform Building Code.  As I (perhaps mis-)understand it, this is developed & periodically updated by a private association of builders etc. - an industry group.  Obviously standing alone it has no legal standing as an enforceable code, except perhaps among members of the industry group that wrote it.  However, once incorporated into the Uniform Code & then adopted by the various States, it becomes enforceable state law.

Our proposed Uniform Code could have built into it, a requirement to honor prior registration by other states, or even to honor everything already incorporated into some central database or library - e.g. the Library of Congress, which has copies of more books on heralrdry (or most other things) than you would shake a stick at.  Then some essentially private/nonprofit clearing house could be set up which would, in effect, certify that thus-&-such new arms were in fact not infringements on whatever is protected, which the Uniform Code could accept as presumptive evidence of acceptabilility; with perhaps a clause making registrations provisional for "x" years within which anyone could challenge the registration as being legally faulty etc.

 
roysmith99
 
Avatar
 
 
roysmith99
Total Posts:  6
Joined  20-08-2006
 
 
 
20 August 2006 06:16
 

Hi folks,

I have recently registered with AHS forums after a few months of lurking and now feel that from time to time I may be able to contribute usefully, even from the UK.

 

I have just completed some research for a friend who live in the US and also designed a coat of arms for him. The discussion in here has helped me quite a lot in understanding how your laws on copyright work, thank you.

 

.