I Know, Right?
Thanks, XKCD, for making my point better than I ever could.
Parking
Grr. I really wanna do a post on parking, but you have to hand them your ticket when you exit the lot (complete with ridiculous ticketwrap), and they won’t give it back. 
Anybody have any good parking ticket (and I mean a time-stamped ticket of entry, not a notice of parking violation) with nasty ticketwrap on the back? I guess maybe I could take the time to write down what it says . . .
Of Trees and Abridging Rights
While this isn’t strictly “Ticketwrap” (I know, it’s only day 2 and I’m already straying), the sharp Ms. Xue pointed this article from the NYT out to me. (Free registration required.) For those of you too lazy to click, the story from 1990 is in regards to the famous “Lone Cypress” tree along 17-mile-drive just south of Monterey, CA and the Pebble Beach Company.
A drawing of the tree was registered as the company’s trademark in 1919. Kerry C. Smith, a San Francisco lawyer who represents the company, said the trademark protected not only the logo but also the tree itself.
Riiight. Let’s review. Pandas = not intellectual property. Now, class, what do we think? Are trees intellectual property? A trademark is a “a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product” (cite). Is “tree” listed there? No. Is a picture of a tree, even this tree, likely to cause confusion to consumers? Very unlikely. Prudential doesn’t get to say “I copyrighted a picture of a rock. Nobody gets to take pictures of rocks anymore.” Nor does it stop people selling pictures of the Rock of Gibraltar. Because that would be stupid.
Trademarking something doesn’t give you all rights to do whatever you feel like to all similar images. It protects you if somebody uses too similar an image in a way that might confuse consumers. I’m including this here at Ticketwrap (see how I’m bringing it all back around?) because both things are symptomatic of the same problem: certain entities manufacturing rights for themselves out of whole cloth, and, in the enforcing of those rights, attempting to abridge the rights of others through threats and bullyism.
I understand that the Pebble Beach Company may just be attempting to protect its trademark from becoming genericized, but that doesn’t mean they get to bully people into not using legally obtained pictures for whatever purposes they want. (What’s more, I think genericization is stupid, and merely encourages trademark holders to be bullies, and should be legislated into obscurity, but that’s a different rant for a different day.)
To whit: here, on this website which is a commercial enterprise for me, is a picture of the Lone Cypress, graciously placed under a Creative Commons License by Wilson Alfonso. Hopefully, people will see this beautiful picture, and decide to hire me to do some lawyerin’ for them.
So, bring it, Pebble Beach Company. What what? There’s no magic in that wand you’re waiving around, and you know it. And just to make you mad: golf is stupid.
How It All Began
From my blog:
I am a card-carrying member of the Zoological Society of San Diego. I love the Zoo and the Wild Animal Park, I love to hang out and watch the animals, and I love what the Zoological Society’s missions and methods are. But when I was recently at the zoo, I noticed this sign posted in the Panda area. Sorry, I mean the “Giant Panda Research Station.”
WTF??!?!!
Let’s be clear: a Giant Panda is not protectable intellectual property. An animal is not copyrightable, because it is not a fixed medium of expression. Similarly, a Panda cannot be trademarked, nor is it patentable, nor is it a trade secret. A picture of a Panda, a description of a Panda, yes. But an actual Panda? No way. If a Panda were just walking down the street, I could take a picture of it, and slap it all over whatever commercial materials I wanted. No matter who it belonged to. I think it might be fun to see the Zoo try to forward an appropriation of likeness argument on behalf of the Panda, but I’m pretty sure that only works on people. -grin- So how on earth can the Zoo assert this right? Did they just make it up?
It probably has something to do with this nonsense in tiny print, that I just now noticed, on the back of my membership card:
Member agrees not to commercially use any photography or reproduction in any form taken during any visits to the Parks . . .
I assume the same thing is on the back of the tickets. You see a lot of this, what I’m going to call “ticketwrap” nonsense about, and I think it’s completely unbinding. I signed nothing, I made, nor contemplated, nor was aware of, any such agreement. I’m sure the zoo would argue that I should have been aware of such a thing, and that I submitted to it by entering the zoo. Baloney. I made no agreement, and there was no contract. In any sense of the term. See Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69. “It is not enough merely to show the form of a contract; it must appear also that the agreement was understandingly made.” See also Kravitz v. Parking Service Co., 29 Ala. App. 523. I’m sure I could find more, better authority, but who’s got the time for that? I’ll wait until they sue me. Why would they sue me, you ask? For this, mayhaps:
So, go, buy your Panda Tee, which, and let me be perfectly clear on this point, is a reproduction of a photograph that I took at the San Diego Zoo, that I am using for commercial purposes. Which I believe I am legally entitled to do. So, bring it, Zoological Society.
Paraphernalia
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