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Orwellian Enforcement of Orwellian Copyright?

Posted in Advertising, Copyrights, False Advertising, Infringement, Marketing, Squirrelly Thoughts, Technology

-Wes Anderson, Attorney

George Orwell’s famous novel 1984 would describe this situation as “doubleplusungood.”

Josh Hadley, an internet radio host and a self-described “harsh film critic with no sense of subtlety or tact,” recently met the ire of Orwell’s estate when he used CafePress to create a t-shirt design with the text “1984 Is Already Here” emblazoned over tattered movie posters. Without comment on the artistic merits of the design, it appears below:

T Shirt Design

While Hadley reportedly did not sell any actual products bearing the design, the London-based “literary executor” of the Orwell estate summarily contacted CafePress to request a takedown of the designs, contacting CafePress’s Intellectual Property Rights Agent and reporting the designs for containing “George Orwell quotes.” CafePress then informed Hadley, who ultimately took the content down, but not before the press took note of the apparent irony of Orwell’s estate using government-enforced IP rights to stifle ostensibly free expression.

Many of the articles focus on the veracity of the estate’s copyright claims. Published in 1949, Orwell’s novel will remain under U.S. copyright protection until 2044, barring further changes to the maximum copyright term from Congress. But copyright protection explicitly does not extend to names, titles, or short phrases, as stated in this circular from the U.S. Copyright Office:

Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright.

So unless Hadley’s design contains excerpts from Orwell’s novel (that do not otherwise qualify as fair use), then there is little substance to support the estate’s claim that the merchandise was “in clear breach of copyright.” Internet commenters intuitively agree, joking “I remember that 12 month period in the mid 80’s where no one was allowed to print calendars” and “I feel bad for anyone who’s 31” (i.e., with a birth year of 1984).

A running definition of “Orwellian” refers to a “situation, idea, or societal condition that George Orwell identified as being destructive to the welfare of a free and open society.” This situation may not quite rise to that level – but perhaps some “re-education” is in order.