Canine Inspired Copyright Confusion?

by Winthrop & Weinstine, P.A.

When we mention confusion on DuetsBlog, we’re typically referring to the well-known likelihood of confusion test of trademark infringement. But today, we’re focused on the apparent confusion many have about the important question of: When copyright protection comes into being. If you ever have wondered whether something is or has been “copyrighted,” this post is for you.

In case you’re wondering, the inspiration for this post comes from my daughter wanting my wife to enter a photo of our four-year-old Rat Terrier (named “Lucky” — long story) in the current Orvis Cover Dog Photo Contest. (By the way, judging from the popularity of the contest, the Orvis brand is engaging in a brilliant use of social media engagement and networking). As you might imagine, I was called upon to provide some pro bono legal advice to a determined minor this past weekend on interpreting the official contest rules (containing a release and license), and this important requirement:

“Photo must be original, unpublished, and not copyrighted.”

Let’s break it down, bit by bit, as I did for my daughter:

Original: The “originality” requirement is straight-forward enough; it simply means that the photo must be an original photograph, not a copy of another’s original work of authorship or public domain material. For example, a scanned digital copy of a professional photographer’s work would not qualify as original. Originality also may imply that the photo doesn’t infringe any valid copyright held by another. Having said that, it’s hard to imagine an owner’s personally-taken photograph of his or her dog not meeting the originality requirement. We snapped Lucky’s photo ourselves, and we didn’t model the setting or pose upon another’s work, so it is original.

Unpublished: It is also understandable that Orvis doesn’t want to consider any dog photo entries that already have been published elsewhere. To be on the safe side, and to stay on my daughter’s right side, as much as I wanted to, I did not include the submitted photo of Lucky in this post, so you’ll have to check out the link to the Orvis site to witness his worthiness!

Not Copyrighted: The most curious aspect of the above-quoted contest requirement is what Orvis means by the phrase “not copyrighted.” This phrase and additional requirement is confusing, especially given the previously-discussed originality requirement, and it probably makes more than a few intellectual property types cringe, perhaps almost as much as asking whether a logo or tagline has been “trademarked“.

Why? As Karen Brennan has explained before, copyright protection exists the moment an original work of authorship is fixed in a tangible medium of expression. So, the moment we snapped the photograph of Lucky, we owned not only the tangible physical digital image of him, but the underlying intangible legal copyright in the image too. And, presumably, the same would be true for all other entrants who snapped their own photographs of their dogs. Importantly, registration is not required for the creation or securing ownership of a copyright, but it is required before one can bring a federal lawsuit to enforce rights in the copyright. So, what exactly does Orvis mean by prohibiting photos that are “copyrighted” when virtually any original photo might be considered “copyrighted,” i.e., ”protected by copyright“?

To avoid internal inconsistency within the contest rules, presumably, Orvis only intends to preclude from consideration photographs that are the subject of copyright registrations, because precluding all photos ”protected by copyright” would disqualify virtually all entries (as demonstrated above in the discussion on originality). The uncertainty and confusion stems from the fact that the common dictionary meaning of “copyrighted” is “protected by copyright,” and “copyright” is not only a noun meaning the “exclusive right to make copies,” but it also has a defined verb meaning: “to secure a copyright on” something that is copyrightable.

So, as is the case when one uses “trademark” or “trademarked” as a verb, it is equally important to seek clarification on what is intended by the verbing usage of “copyright” or ”copyrighted” — depending on the context, it may or may not mean that a copyright registration has been obtained. Again, in the context of the Orvis contest rules, it seems to me that “not copyrighted” must be intended to exclude only photos subject to registered copyrights, since a copyright is protected and can be considered secure merely upon fixing an original work of authorship within a tangible medium of expression. We haven’t sought registration of the copyright in the submitted photograph of Lucky, so we should be good there too. But, let me know if you disagree.

In any event, my daughter kindly requests that you vote for Lucky, early and often.

And after you vote for Lucky, please remember these related oldies, but goodies too:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Winthrop & Weinstine, P.A. | Attorney Advertising

Written by:

Winthrop & Weinstine, P.A.

Winthrop & Weinstine, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.