Could LIO use Creative Commons licenses?
The latest on the Laugh It Off case is that the company has filed papers with the Constitutional Court. My question to ccSA’s resident legal guru, Christiaan Bester, is this: ‘Since LIO lost their case on the basis that they were using their commentary for financial gain, could they release the designs under a Creative Commons non-commercial license, enabling people to download the designs from the Internet and make their own Tshirts?’
I asked him this because of Hellkom’s decision (due to legal advice) to allow people to make their own Tshirts using the designs hosted on the site. I presume that they wouldn’t be liable since they were expressing themselves without thought for commercial gain. This is what Christiaan had to say:
‘The Supreme Court of Appeal in Laugh-it-Off did not expressly say that commercial parody is impermissible under our law. Judge Harms did however take the commerciality into consideration as one of the factors that led him to conclude that trademark infringement had taken place. In this respect, he referred to the ‘predatory intent’of Laugh it Off in making money from their use of SAB’s trademarks. He referred to a French case where Greenpeace had parodied an oil company’s trademark. Greenpeace, did not do so for commercial gain, but as a kind of ecological protest.
Accordingly, Laugh-it-Off may distribute its T-shirts for free under a non-commercial licence, but the terms will have to be extremely narrow so that any form of financial gain from such distribution is completely proscribed.
This does not mean Judge Harms was correct in his assessment of the case. We know that in the United States, commercial parody is allowed and receives constitutional protection. The judge was referred to these cases but was clearly not persuaded. The Constitutional Court will have to decide on this question, but until the case comes up for hearing in the next year or so, the judgment of the Supreme Court of Appeal stands as the proper and binding interpretation of the law.’
At least there is something that can be done to protect the expressions if they lose the case. We hope that it doesn’t come to this. But there you go.