Why is the famous “I [heart] New York” logo protected by trademark and not copyright? At first glance, you’d think that it’s artwork, and therefore can be protected by copyright. However, the Copyright Act protects “original works of authorship.” The “I [heart] New York” logo is merely a phrase, with the word “love” replaced by a red heart. As the Supreme Court held in Feist Publications, Inc. v. Rural Telephone Service Co.,
[t]he sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. … Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.
The logo unfortunately fails that test.
However, the logo absolutely evokes the New York brand, and is a famous trademark used by New York’s state tourism agency, which helpfully provides licensing information for those seeking to use the logo. While the logo isn’t covered by copyright, the ad campaign in which it was used certainly is, and the jingle “I Love New York” certainly is.
In the late 1970s, Saturday Night Live aired a sketch called “I love Sodom”, in which the beleaguered biblical town of Sodom felt that it was known only for, well, I don’t need to get into it here. They came up with a brilliant ad campaign – which of course sounded very familiar to viewers. New York was not amused, which led to the case of Elsmere Music, Inc. v. National Broadcasting Co. SNL won, as the sketch was obviously a parody. In fact, this case was cited by the Supreme Court in another famous intellectual property case, Campbell v. Acuff-Rose Music, Inc.
All of this came to mind because a potential client asked how to protect his clothing designs. These were designs that could be printed on a t-shirt or other clothing items, rather than the design of the clothing itself. Interestingly, the proper way to protect the design of clothing itself has been the subject of much intellectual property litigation. Four years ago, the Supreme Court confirmed that the clothing designs that are non-functional can be protected by copyright law, though the functional design itself would instead need to be protected by a patent.
And now, if you’ll excuse us, we have an SNL sketch to re-watch.
— Joshua D. Waterston, Esq.