Question about intellectual property licenses

I made some t-shirts with images of Mexican loteria cards on them and put them up for sale. I received an IM from someone who claims to have the exclusive license to produce anything and everything that has to do with loteria throughout SL. I.e., t-shirts, posters, etc. I asked her to clarify, did she mean that she thought she held copyright to the particular images that I used? Because that could possibly make sense, although the images I used were very generic and very old, and she certainly didn't create them.

I asked, if you believe you have the exclusive license for anything related to loteria, wouldn't that be like saying you held the exclusive license for anything that had, for instance, a *cat* on it? It's like saying you have the exclusive license for any and all images of playing cards. Not a *particular* playing card, but any depiction of any kind of playing card no matter who made it, or what it portrayed.

I asked, what if I created my own image of a loteria card from scratch, can I use that? And she said no, anything that has anything to do with loteria is owned by her. And BTW, she said, you can't *give* them away, either.

This seems ridiculous to me, but maybe I'm wrong. Loteria is a game that is played with any number of different kinds of cards and boards, and it's *old,* like 500 years old. how can you own the license to a *genre?* It's not like owning a license to use the word Monopoly or something, or a particular kind of tarot cards -- those things certainly do have copyright owners, and I wouldn't use those without getting permission. But this?

When I asked for proof, she gave me the name of her licensing agent, who I have not called yet because I wanted to get some advice first.

Sorry this is so long. Any thoughts?

Edited to add: She said that she owned the license, and that I had to remove my items from sale in my shop, which I did. I had, however, already sold a few of them, and also given a few away.

I am not sure exactly of what "loteria cards" are - but if the images are old, hundreds of years old, they are certainly public domain, you can use them as you see fit and this person is just trying it on. Ignore them; you do not have to remove anything.

I don't see how someone can have "all rights" to a game that has been widely played, with many versions, for 100's of years. As you say if you are using photos she took... that would be different.

actually it probably depends where you got the images from, however I would be inclined to agree with Mr Malaprop on this one.

http://gallery.elsewhere.org/v/loteria/

Looking at Wikipedia, we find the following:

"The following is a list of all the original 54 Lotería cards, traditionally and broadly recognized in all of Mexico. Below each card name and number, are the riddles (in Spanish) that are sometimes used to tell the players which card was drawn. However, there are several less traditional set of cards, depicting different objects or animals."

Followed by a list of card images and riddles.

Since these are traditional I really don't see where she would have a case as long as you are not using exact copies of her images.

I would put the stuff back up for sale and tell her lawyer to send your lawyer a letter.

Salvia

I agree with the last 2 posters, but my advice is to google it.

Then tell the person who claims they have exclusive rights to either produce in writing a document to confirm this or tell them to take a long run off a short pier.

Edit: agree with Chris too, also search 'Loteria Copyright'. Only some images have Copyright and they are listed. The game itself not.

Good Luck and don't waist your money on a Lawyer.

Cool. Thanks a lot, everyone. You're validating what I thought -- and I'll do some more research -- but I basically wanted to know if my thought process made sense.

If you know item is public domain you could alway tell them to proof they have exclusive rights to this.
Someone recently went on about something similar about something similar, I went to their shop lot of images looked like they were from Genetic, Filter Forge or had been Googled photos.
I don't know perhaps the person thought they could bully you too in same way?
I would think on safe side why not draw your own?
And if it comes in question you will have proof from your original drawings you drew your own designs.
Although if you can prove it public domain I guess why would bother going through all that work to create your own textures?

Yeah, I wouldn't really want to take the time to create my own, and they wouldn't have the feel of the originals anyway -- I was just trying to find the parameters.

This person hasn't been mean about it, but I also can't think of any reason that they would lie about it, I think that they're probably honestly confused.

I wrote to the licensing agent about it, hopefully he'll get back to me with some clarification.

to own the rights to a game would be like owning an invention..the patents on inventions go out of date after ten years in the U.S..ask her for her patten number to the game..since the game is 500 years old it would be like her saying she owns poker or chess..it's just not gonna happen ..
infact i think the only way you can buy and keep a patent from becoming public domain is if someone can improve on the product at the time the patent expires..
unless she is from that time period and has been making improvments on the game for the past 490 years i would say you are safe hehehe

Loteria would be lottery. At least that's the spanish translation. I imagne this is what it is but I find it kind of hard to believe anyone would have the rights to this. Only way would be to show some kind of proof.

Oh, ok.

Actually this is more like lotto.

The issue in this case is neither copyright nor patent. It's trademark.

A quick check at the US Patent and Trademark Office online shows a number of trademarks around the word 'Loteria'. The fact that it's an ordinary word (albeit not English) doesn't matter, for the same reason that Apple can be trademarked for specific products. What does matter is that the game existed under that name for many years, so the word itself cannot be trademarked for that purpose. (Just like Apple can be trademarked for computers or music, but not for the red fruit that grows on trees.) If you look at http://www.myloteria.net/, you'll see they've trademarked "MY LOTERIA BY CRISTINA SOSA NORIEGA", which is not the same thing as trying to trademark the word "Loteria".

What this boils down to is that they can't stop you from using a 300 year old image, nor an image in that style that you create from scratch. If indeed this person does have a license from one of the owners of a trademark in Loteria, they might be able to stop you from using the word 'Loteria' as a name for your products, if they conflict with their products. But they can't stop from saying "these products are based on the traditional Mexican game loteria", because that's using the word with its real meaning in a sentence, not as a brand name for a product.

The usual "I am not a lawyer" disclaimer applies here.

It used to be 17 and is now 20. I don't know where you got the ten years from. In any event, this isn't a patent situation.

Ridiculous. of course it's not owned unless you are copying her stuff.

So it's more a case of ineffectual property licenses.

This is going to cause a big backlash, but here goes.

Continue what you're doing, and if she does have some sort of airtight legal exclusive claim to part or all of your product, let her do the work and come after you.

The worst that can happen is she could make you stop making and selling any more.

This sort of stuff does tick me off a wee bit. IP, copyright, trademark.. whatever you want to call it within SL is just something LL uses as a marketing ploy.

The questions to ask are:

(a).. Has this person really spent the RL cash necessary to protect whatever in SL. I know there are rights which are freely protected in certain countries.. but who can say which legal jurisdiction this would fall under?

(b).. Given a cause of action, would the person really spend the RL cash necessary to stop you from what you're doing and then to go after monetary recompense..?

(c).. Given a and b (and yes I did see a pig fly by)...how is she going to find you ..?

I'm really sorry, I know that there is a moral question here, so if you feel badly and you feel that you really shouldn't be doing what you're doing then stop.

But at the end of the day, if you feel you're doing nothing wrong, the don't waste time on all this stuff.

i was younger when hearing about them and i guess the number 10 stuck with me for some reason hehehe..
there are different ages for different types of patents. i'm sure they all increased and the age of the patent was not a serious number because it was invented so long ago..

it was more of a ha ha than being serious because of how silly this girl sounds for thinking they have a monopoly on the product which is why a patent expires..to stop monopolies..

A question for the OP: since the person who approached you about this claims to have an exclusive license, from what entity does she claim to have obtained that license?

Although in this case it seems unlikely that anyone could have sole rights to all marketing of old traditional images, I find it hard to believe that being stopped is the worst that can happen when one does infringe on someone else's legitimate copy right.
For instance if the Rolling Stones' lawyers hear about you selling tee shirts with their tongue and mouth logo I imagine they could sue you for some sort of real money.
Maybe an expert will chime in here...

She said that she has obtained a license through a licensing agent. I wrote (emailed) the agent last night asking for clarification and proof.

One thing in the reponses that struck me -- maybe she has a license to use the *word* Loteria in SL, although that wasn't the impression she gave me. It will be interesting to see what the licensing agent says.

And to Stephen Wisent's point -- No, I don't feel like I've done anything wrong. The images I used were chosen carefully to not -- as far as I could tell -- infringe anyone's trademarks or copyrights. I did remove them because I didn't want to be threatened with a suit, but after thinking about it awhile, I started thinking, wait a minute. This just doesn't seem right at all!

And also, yes, I've been careful to keep my real name private. This doesn't seem like the kind of thing that someone would be willing to spend big bucks to pursue, unless the recent sex gen thing. Although the person I'm in this dispute with is well known in SL and probably makes a relatively large income there.

If the name "Lotteria" is a brand name, like "Monopoly" then I think whoever owns the brand can stop anyone else from using it.
But if it is a generic name like pinochle surely anyone can use it.

I've just ben reading about U.S. Copyright law

Excerpts:
Public domain. Works in the public domain may be copied
without permission from anyone. How do you know if
something is available to the public? You don’t, for sure. There
are many works that had their copyright renewed, either by
formal renewal or automatically by law. To be sure that
copyright has expired, the publication of the work would have
to go back to 1922 or earlier.

The amount of statutory damages must be within a range set
by statute. The amount can be between $750 and $150,000
per infringement. The Judge can reduce the amount to $200 if
the infringement is legally “innocent.”

If you are using photographs of lotteria card which were taken fairly recently then I'm pretty sure that the photographer can come after you. At least that's what my photographer friend has told me.

Hi Kaimi,

If.. and a big IF.. the claimant here could prove anything, and had both the money and the motivation to pursue this..

My first question would be "who" would they come after? LL isn't going to release your RL details because someone thinks they have a civil case against you. If they did, or we even suspected they would, SL would be a different place.

Even if the "who" was identified but lived on the other side of the world, the second question would be "how"?

My third question would be "why"? Assuming the infringement is covered by US law, and that the claimant has a case, and that the "thief" is identified.. what would they out of the chase?

Because this is what it really boils down to in most of these type of instances.. what could the defendant really afford to pay?

Seriously, these threads are interesting for their own sake, but nobody is going to track the OP across the world by fair means or foul, investigate their RL financial status and then instigate an international legal case for the sake of a few tens of dollars earned in SL.

An toothless injunction maybe.. anything else...in RL.. never going to happen.

Well once Identity Verification goes into place, she can display her RL Age as over 500 to at least show its plausible she is the original creator.

Until then you are very likely safe. If you are hit with a DMCA notice you should be able to fight it, I would think.

-----------------------

Unless you are using her current copyrighted images in your work, thats different .. Such as using Loteria cards she "drew" and posted on a website as the graphic for your shirt.

That's the sort of thing I was wondering when I asked who the grantor of this license supposedly was. The person challenging the OP may have claimed to have "exclusive right to everything having to do with Loteria in SL," but if the licensor didn't have that right to give, then the licensee can't possibly have it.

I'm curious to see what this "licensing agent" tells you, Salvia, about the actual scope of the license. I'd still like to know who the supposed owner of the right is. I think knowing that information will help unravel what the scope of the claimed right - as well as the scope of any actual right - is likely to be.

I still don't know enough about the facts to form any solid views here, but it strikes me that:

* It's unlikely that anyone owns an enforceable exclusive right to all things relating to Mexican Loteria. The game is hundreds of years old.

* It's possible and even likely that the iconic images themselves, however, are the subject of someone's claim, either through copyright, trademark, trade dress, or a combination of the above. (Whether that claim would stand up under Mexican law, or US law, are separate questions from whether someone would make the claim, and would require a lot more investigation.) According to Wikipedia, there is one publishing company that's been producing the standard set of cards for over 100 years; I would not be surprised if that publisher routinely claims exclusivity over those particular images.

* Even if someone does claim an exclusive right to the iconic images, given the age and traditional underpinning of the game itself, it's likely that others would be free to produce their own Loteria sets using images of the same iconic objects, as long as they are not the same images.

* Finally, even if the iconic images in the usual, famous set of cards are not themselves subject to any exclusive claim, as has been mentioned above, a photograph of those cards could be subject to a valid copyright. The OP's challenger has phrased her challenge considerably more broadly (as an exclusive right to all things Loteria-related in SL) so this is probably not the claim she is making.

(Disclaimer cause I have to: I am an intellectual property attorney, but I am not the attorney to anyone on this thread; the above is not meant to be legal advice but rather a general analysis of some possibilities given the incomplete view of the facts presented here. Any real legal advice would require a much deeper understanding of the facts.)