Wikipedia talk:WikiProject Scouting/Userboxes/former BSA

See also

• {{user Scout-former}} --James S. 11:53, 19 January 2006 (UTC)

U.S. trademark law

The 1916 Act of congress did not create any copyright interests because the Constitution specifies that copyrights may only be granted for "limited times," and the Boy Scouts of America (BSA) do not claim any copyrights, using the registered trademark (R) symbol alone in conjunction with their logo, and not the (C) symbol.

U.S. law protects the use of trademarks by nonowners for purposes of criticism and commentary. First Amendment considerations override any expressive, noncommercial use of trademarks. "The Constitution is not offended when the [Maine] antidilution statute is applied to prevent a defendant from using a trademark without permission in order to merchandise dissimilar products or services. ... The Constitution does not, however, permit the range of the antidilution statute to encompass the unauthorized use of a trademark in a noncommercial setting such as an editorial or artistic context." (emphasis added) L.L. Bean, Inc. v. Drake Pubs., Inc., 811 F.2d 26, 31, 33 (1st Cir. 1987.)

Similarly, the Federal Trademark Dilution Act of 1995 does not apply to the "noncommercial use" of a famous mark. 15 U.S.C. 1125(c)(4)(B). The U.S. Supreme Court has defined "commercial speech" as "speech which ... propose[s] a commercial transaction." Virginia Pharmacy Ed. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976.)

The only limit on this right is whether someone might think that the commentary was produced by the trademark owner, which has been defined directly on point in reference to scouts. "[A]n author certainly would have a First Amendment right to write about the subject of the Boy Scouts and/or Girl Scouts. However, this right is diluted by trademark law insofar as that author cannot present her subject in a manner that confuses or misleads the public into believing, through the use of one or more trademarks, that those organizations have produced or sponsored the work in question." (emphasis added) Girl Scouts of the United States v. Bantam Doubleday Dell Publishing Group, Inc., 808 F. Supp. 1112 at 1121, n. 12 (S.D.N.Y. 1992.)

Fair use image

Sorry to step in, but I've removed the image due to copyright issues. As far as I can tell, the original logo is based on a variant of Image:BSA Color Logo.png, which is on Wikipedia under fair use considerations. (See guidelines here: WP:FU#Fair_use_policy) Fair use images can only be used within articles to illustrate a point - they can't be altered and uploaded elsewhere as a public domain or free image. Fair use images also can't be placed on templates and user pages. As a result, I've gone ahead and removed the image and nominated it for deletion. Please try to find a free or public domain replacement. Thanks. — Rebelguys2 ^talk 07:40, 9 February 2006 (UTC)

The image is a unique derivate work formed from the trademarked black-and-white BSA logo in composition with the universal "no" symbol, a red circle bisected by a diagonal rule. As such, it is an original work not subject to copyright restrictions. It is not copied from the official BSA logo, color or otherwise, but is an original work based on it. Because trademark restrictions do not apply to commentary on an organization's logo, this image may be used by anyone for any purpose. Thank you for your concern. --James S. 07:49, 9 February 2006 (UTC)

Wikipedia:Logo states that "Defaced logos or logo parodies should be used with care and not given undue prominence. Parodies of logos can be used in under fair use in an article about a parody site or campaign against some aspect of the operations of the company, but in an article about the company itself, a parody is less likely to be as important or likely to be fair use." This parody has been released as public domain and is used solely in user pages and templates, which is not fair use. — Rebelguys2 ^talk 08:23, 9 February 2006 (UTC)

There is no copyright on the BSA trademark and there are no policy or guideline restrictions on the use of uncopyrighted trademarks on Wikipedia, and no restrictions on using trademarks for commentary. There can be no valid copyright on the BSA logo, because it appeared prior to 1923 See: Copyright Term Extension Act --James S. 09:05, 9 February 2006 (UTC)

However, the same source that you cited also states here that "The trademarks and logos of the Boy Scouts of America are protected by a 1916 act of Congress." Looking up the clause (36 USC Sec. 30905) in the United States Code here and here, it shows that the BSA logo is, indeed, still a registered trademark. Per the BSA's copyright and trademark site, "In other words, they must appear with any ownership symbols exactly as received, and no additional symbols are to appear in connection with them." — Rebelguys2 ^talk 09:29, 9 February 2006 (UTC)

Such trademark exclusivities apply to commercial speech but do not apply to commentary, because the U.S. Code is subordinate to the First Amendment to the Constitution. Moreover, you have repeatedly implied that the derivative image is a parody; it is not. It is a composite symbol made for purposes of commentary. You should contact the Custom Communication Division at the national office for further guidance. --James S. 09:43, 9 February 2006 (UTC)

I referenced the 1916 act to show that the trademark is not currently in the public domain. Any use of that logo, therefore, is considered fair use. As a result, modifying that fair use image does not automatically make the result free or public domain. Wikipedia:Logos states that, "[d]efaced logos or logo parodies should be used with care and not given undue prominence." In addition, the term, "parody," is partially defined in Wikipedia policy as a "campaign against some aspect of the operations of the company" — the point of this image's commentary. Therefore, this image must be considered fair use under Wikipedia's definition of parody. However, fair use images cannot be used in templates and user pages, as it is being used now. This image, then, does not meet fair use criteria, has no encyclopedic value (UE), and would also be orphaned (OR), since it cannot be included in user and template pages. — Rebelguys2 ^talk 10:01, 9 February 2006 (UTC)

A modification of an uncopyrighted trademark is a derivative work and the property of the creator. I created the derivative, and I so I had the right to release it into the public domain. Trademark restrictions are the only restrictions on the image, and only apply to commercial speech. The assertion that "this image must be considered fair use under Wikipedia's definition of parody" is wrong, because the image is not a parody, either. --James S. 10:22, 9 February 2006 (UTC)

Here's where I think you misunderstand - The prevailing view on Wikipedia is that the original image (the Scout logo) is protected, and therefore can only be used under terms of fair use. Therefore, you cannot claim public domain for a derivative work, without expecting the prevailing view on Wikipedia to be any different. If you could find a judge somewhere to resolve this definitively through a ruling, that would be swell and we'd all be happy to comply, but in the meantime, Wikipedians police themselves, and the apparent prevailing view is that your image can only be used under "fair use," hence cannot appear on user and template pages. From this stance, then, there is no reason to keep it on Wikipedia. Therefore, I support deleting it.NThurston 20:32, 2 March 2006 (UTC)

Further replies to Wikipedia:Images and media for deletion/2006 February 9, please. --James S. 10:29, 9 February 2006 (UTC)

The image in question is a derivative work and is explicitly made to be like the BSA logo. The trefoil, eagle, shield, and stars are the same. The image is protected by copyright. The BSA page you referred to explicity says the logo is registered. It is also copyrighted. Under copyright law, derivative works of a copyrighted image are copyrighted just the same as the original image. Therefore, the derivative image that you created based on BSA's logo are protected by BSA's copyright. Fair use policies dictate that such images may not be used for the purposes you intended it to be used. Wikipedia expressly prohibits using protected images in userboxes, see: Wikipedia:Fair_use#Fair_use_policy, item #9. This is protecting Wikipedia against copyright infringement lawsuits. You may have drawn this image yourself, but you know you drew it to look just like the BSA logo, in color or not. You even call it "FormerBSA". Rlevse 19:39, 20 February 2006 (UTC)

On the contrary, the image is trademarked but not copyrighted. The reasons are given in detail above, starting at the top. There are no restrictions on derivative works based on trademarks for noncommercial commentaries. --James S. 00:32, 25 April 2006 (UTC)

Purpose

Can someone tell me why people do not want to be affiliated with the current Boy Scout leadership? Victor 20:59, 24 March 2006 (UTC)

Many have their own reasons. Although I'm sure that many of those using this template are upset with the Boy Scouts's views on homosexuality. Although I can't speak for them. — Scm83x ^{hook 'em} 21:42, 24 March 2006 (UTC)

The major reasons are listed and analyzed at Boy Scouts of America membership controversies. --James S. 00:32, 25 April 2006 (UTC)

Re-wording

While I have no beef with the intent of this template, I am concerned that the current wording amounts to a personal attack and should be rewritten. For example, I wouldn't like to see a template that says "This user no longer wishes to associate with people of {blank} ancestry." Couldn't there be an alternative that is less personal in nature? NThurston 22:39, 24 April 2006 (UTC)

The difference is that people can not change their ancestry, but they can elect a different organizational leadership. So, while I agree that your example would be a personal attack, I do not agree that the wording of this template constitutes anything more than principled criticism. --James S. 00:32, 25 April 2006 (UTC)