Photo: Adam BA local artist paints landscapes and various Austin sights, including the Texas Tower (the university’s main building). He must pay the university a flat fee per year for the right to sell paintings of university property, emblems, or even anything containing the burnt-orange color. All are copyrighted. Also, if his sales rise above a certain level, he must pay the university 10 percent of his extra revenue.
This two-part tariff is fairly common, but why does it exist? Why not just a percentage, or why not just the fixed fee? A wonderful old paper (Walter Oi, “A Disneyland Dilemma,” Quarterly Journal of Economics, 1971) showed conditions when this pricing scheme makes sense for a price-discriminating monopolist. Looking at those conditions, I think that they are less relevant today than 40 years ago due to increased monitoring costs.
I would bet that, like Disneyland, more monopolists now charge only a fixed fee and forgo the percentages. That makes me wonder why my university imposes this two-part pricing scheme.
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UT: selfish pigs. That is what I gleaned from this article.
Daniel, this is a common misunderstanding, it is not a COPYRIGHT issue, but a TRADEMARK one.)
The UT, like most institutions, has registered and common law rights on logos and other identifiers of the University and uses these intellectual properties as assets. (See
The two-part structure structure discourages trivial uses ( which may dilute the distinctiveness of the marks) by establishing a threshold, and the running royalty leverages the upside of the commercial use of the University’s symbols, goodwill,and reputation.
The artist still has the copyright to his creation and controls its reproduction.
That’s the economics of intellectual assets.
Isn’t that a public university? If so didn’t the public pay for it and as such wouldn’t it be ‘public domain’? Why does everyone seem to think they should be paid forever for anything they had made even a minor contribution to.
You owe me $5 for this comment. I see the ad’s on your blog.
@Tim – Colors can be protected as trademarks, when they indicate source, sponsorship, or origin (for example, pink fiberglass, where the pink did not serve any function but was used to identify the brand, and advertised through Pink Panther cartoon ads.) I’m not aware of any case holding that color can be copyrighted.
Isn’t this what a typical mall would charge a retailer? Fixed rent plus a percentage of sales?
Tell your friend to talk to an IP lawyer. I very much doubt that the University is entitled to ANY fees at all. Neither Trademark, nor Copyright principles should prevent him from making and selling drawings, pictures, photos etc. of buildings or other architecture that is publicly viewable.
The tower and all buildings built before 1989 have very limited copyright in their appearance. After 1989 an architectural copyright is generally limited to architectural blueprints and/or making copycat buildings but does not extend to depictions of the building in art.
As to copyright see 17 U.S.C. § 120. Scope of exclusive rights in architectural works.
(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
As to trademarks, see Rock and Roll Hall of Fame v. Gentile, 134 F.3d 749 (6th Cir. 1998).
Just because it’s supported by taxpayers and owned by the taxpayers doesn’t mean taxpayers get a say. Can they go to football games free? Are there open admissions? When they are drunk in a at 2 a.m. do they get to call up the campus bookstore and ask “Do you have Prince Albert in a can?” Taxpayers have the right to provide more and more money to their state universities, but have no rights beyond that.
But, seriously: Why should distinctive features of UT (tower, design on football helmet, etc.) be any less trademarkable than the font on a Coke can or the distinctive shape of an old Coke bottle?
I remember going up to the top of the Tower some years ago. They had a little museum up there with a lot of Charles Whitman stuff. It was creepy.
good god, this comments section is a wonderful experiment in explaining why lawyers get paid so much.
#1 is right – why is he paying them any money?
there are 2 things that could be legally at work: copyright and trademark.
Copyright:
The copyright in architectural works is covered by, aptly, the 1990 “architectural works protection act.” (Text at http://www.law.uconn.edu/homes/swilf/ip/statutes/copy120.htm) buildings built prior to 1990 are NOT covered by this (only the plans are covered and only as drawings, like a painting). so yes, you can go out and build another chrysler building and no one can do anything about it.
after 1990, buildings are covered, but there is a specific exemption for drawing them. section 120:
“(a) PICTORIAL REPRESENTATIONS PERMITTED. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
there is no copyright for colors (“mere coloration cannot support a copyright,” see Compendium II: Copyright Office Practices, 503.02(a))
as for a copyright in the emblem, even if there was still a valid copyright (u tex is 125 years old, well past copyright terms unless they update their emblem, which would be pretty sad), fair use here would kick in. it is very hard to see how including a small emblem in a landscape scene is going to trigger liability.
Trademark:
a trademark is a source signifier. we have them for the good of the people, so that when you buy a coke you know you’re getting a sugary sweet fizzy drink and not something healthy. the thing covered by trademark in this situation would be a university emblem or logo. while in some cases a color by itself can function as a trademark in a circumscribed area, such as orange for home improvement products – guess who?, i’m not aware of universities tm’ing their colors by themselves.
but even so, there is infringement if and only if the use of a mark has created a “likelihood of confusion about the origin of the defendant’s goods or services” – tm is NOT copyright, you don’t get the right to prevent all use of your mark (the world “eagle” is a trademark – for hundred of different people – cars, peanuts, etc) – but only where it legitimately confuses people as to who made the product in question. so if our guy is painting the univ logo in the bottom right hand corner of his landscapes, then yes he may have a problem, but if he is just painting a university scene that includes a jogger wearing nike shoes, a couple of students eating big macs, and a sign pointing to the cafeteria with a university logo, he doesn’t owe money to nike, mcdonalds or the university. why? bc no reasonable person looks at the painting and goes “oh that must have been produced by nike – look at the guy’s shoes!”
now all of that said, even if you’re right under the law, that doesn’t mean you won’t be sued. maybe our guy is paying because of an uber aggressive univ legal dept that threatens to bankrupt him with legal fees. in that case he should use the wonderfully freedom loving austin mentality to his favor. the student newspaper should know that if students’ parents take pictures when visiting and put them on flickr – which allows one to buy copies – then the univ considers them to be violating federal law and subject to damages. sign painters of the world unite!