Getting a COA registered

[Joseph McMillan]

Scott,

I understand your position on this. It is not that of several intellectual property attorneys I've consulted with on the subject. Obviously lawyers make their money by disagreeing with each other, but for what it's worth readers might want to see what other experts have said on this subject. The following was put together on the basis of legal advice and appears on the AHS website:

3.  Why Not Trademark or Copyright My Arms?Many people ask why they cannot protect their arms in the United States under either the copyright or trademark laws.

3.1  CopyrightThere are several problems with relying on copyright to protect armorial bearings. First of all, U.S. courts have consistently held that copyright to a work of art subsists only in the specific rendering, not to the general idea of what is depicted. An artist may hold the copyright to a painting of a blue shield with a golden deer jumping over a silver log, but this does not prevent another artist from painting the same scene in a different style. Thus, a specific emblazonment of a coat of arms may be copyrighted, but that will not prevent another artist from emblazoning the same arms with a different shape of shield, a different rendering of any animals in the design, changing the helm, changing the mantling, or any other alteration that a court might find substantial enough to constitute a new work of art. Even a slight difference might suffice in the eyes of a court. Some have suggested that perhaps the blazon could be copyrighted, but what is subject to copyright is a new creative work, and the courts have found that a basic description of a creative work is not necessarily creative in itself. In any case, there is sufficient flexibility in how arms are blazoned that it would be easy to evade any protection offered by asserting copyright in the blazon.

Even if it were possible to copyright the general idea of a particular coat of arms, and extend that protection to all derivative depictions of the same arms, one would still have to show that the design of the arms required creative effort. This would not apply to arms inherited from ancestors, or to arms granted by foreign sources. Other issues include the fact that copyrights can be bought and sold; customarily personal arms cannot. Finally, copyright in any work exists for only a limited time. While recent legislation has extended the duration of copyright, it eventually expires. But the main thing that distinguishes personal armorial bearings from other symbols is that they are indefinitely hereditary in the same family.

3.2  TrademarkIt is possible to register one's arms as a trademark under state or federal law. The problem here is that a registered trademark is valid only if it is actually used in one's trade or profession. Most armigers do not intend to use their arms for that purpose. Moreover, the same problems concerning the extent to which a design must be altered to constitute a different design arise in the trademark area as well; a court adjudicating a case will not be likely to ask whether the marks are sufficiently differenced under the law of arms but whether a reasonable consumer, seeing the two emblazonments, is likely to confuse one with the other. Even if the arms are used in business, once they are registered as the trademark they are typically tied to the business. If the business is sold, the trademark usually goes to the new owner. Thus, if a business owner has registered his arms as the trademark of his company, and he dies and the company is bought out as part of the estate settlement, his children may find that they have no right to their hereditary arms.

[SlackerDrummer]

Kenneth, I am afraid you are in error. Provided you are the owner of the copyright of the original piece, you also hold an equal copyright to any other pieces derived from the original. With regards to arms based on, or "derived" from, arms already in use (ie: chiefly arms) you need to remember that the letters patent issued by the granting authority are prima facie evidence that the arms depicted on the document are, in fact, uniquely the sole property of the individual named on the document. Thus, each act of a substantive granting authority creates a new and unique piece that can be copyrighted if the recipient so chooses.

As far as heraldry is concerned, yes, we all agree your arms are unique. As far as copyright law is concerned, however, the protection "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material." So if you agree that the arms of Makclenand of yt ilk dating from the 16th century are protected, then the difference between them and yours (blue stars rather than red) is what is unique and therefore that change is what is covered in your protection under the law. In no context, I think you are absolutely correct in your assertions, but in the greater context of heraldry, I'm not convinced. Of course this is all intellectual debate as there is no historical context in which to place it (in the US court system).

No, it's not irrelevant, it is 100% on point. Unless I have misunderstood you, you had suggested that copyright covered the exact image, without variation. With a book it isn't the size (hard back, trade edition, or mass market paperback) but rather the intellectual content which is copyright. The same applies to the arms; it is the intellectual content of the blazon which is copyright, not the size and shape of the shield, or the manner in which it is depicted on the letters patent.

If your intent is to copyright the text of your grant, by all means keep using the example of the book. But the "intellectual content" of the blazon of a coat of arms is too abstract to be protected under copyright law. In other words the concept of a white shield with a red lion between two red bars with three blue stars in chief isn't subject. From the law: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Rather than go into a really looooooong description of tradmarking in the USA (which really is off topic), I would suggest that anyone who wants to do this first read the Wikipedia article on trademark (which is a very good overview), and take away the understanding that (1) you can file for your trademark before you go into commerce, and (2) that virtually anything can (and probably has been) trademarked. The basic requirement is that the trademark is intended be used in commerce; merely placing your arms on your calling card qualifies for a trademarking.

While placing the arms on a business card (not a calling card) does provide a good faith effort to show that you intend to use the mark in commerce and is good enough to register the mark, you must specify what goods you intent to sell under the mark or what services you intend to provide. The mark is only protected for the things listed on your application and according to the US Patent and Trademark Office, "If you list vague terms, such as 'miscellaneous services' or “company name,” your application will be considered void and you must file a new application."

Just out of curiosity, Scott, if you could register your arms as either a copyright or a trademark (which you can't), would that make them substantive in your mind?

[MacMillan of Rathdown]

As far as heraldry is concerned, yes, we all agree your arms are unique. As far as copyright law is concerned, however, the protection "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."

Basically this is saying 'you can't copyright a fact' only the conclusion drawn from that fact.

So if you agree that the arms of Makclenand of yt ilk dating from the 16th century are protected...

what is protected is the right of the owner of those arms to their exclusive use

...then the difference between them and yours (blue stars rather than red) is what is unique and therefore that change is what is covered in your protection under the law.

It has nothing to do with any change and everything to do with the right to protect that to which I have exclusive ownership through a perfect title in law.

In no context, I think you are absolutely correct in your assertions, but in the greater context of heraldry, I'm not convinced.

Here, it seems we part company, unless you want to pay my usual consultation fee of $250/hr-- !

Of course this is all intellectual debate as there is no historical context in which to place it (in the US court system).

It is, and for the life of me I can't imagine anyone else being interested at this point.... and if they are, maybe they need to get a life...

If your intent is to copyright the text of your grant, by all means keep using the example of the book. But the "intellectual content" of the blazon of a coat of arms is too abstract to be protected under copyright law.

No it's not; the blazon is the legal description of the arms. Since 2001/2 all grants made by the CHI have been copyright in the name of the state. It is the blazon, not the exemplification (usually depicted somewhere in the letters patent) which is used for the copyright.

In other words the concept of a white shield with a red lion between two red bars with three blue stars in chief isn't subject.

But it is, for the reasons cited above. You may not believe it to be so, but it is.

From the law: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Right. It means that the estate of Bram Stoker can't sue Anne Rice claiming that they own the copyright to the idea of a vampire novel, anymore than the College of Arms could sue the Chief Herald of Ireland claiming they own the concept of Heraldry.

While placing the arms on a business card (not a calling card)...["business" cards? ] does provide a good faith effort to show that you intend to use the mark in commerce and is good enough to register the mark, you must specify what goods you intent to sell under the mark or what services you intend to provide.

In your instance you could say "Armorial Advisor, or any such lawful enterprise which may be subsequently undertaken in the future" or some such, and append the letters "AA" after your name on your cards. (That will be $250 for the advice, thank you.)

The mark is only protected for the things listed on your application and according to the US Patent and Trademark Office, "If you list vague terms, such as 'miscellaneous services' or “company name,” your application will be considered void and you must file a new application."

Sorry, we're on the clock now, and any further advice is going to cost you.

Just out of curiosity, Scott, if you could register your arms as either a copyright or a trademark (which you can't)

Says who?-- Oh wait... we've already had that discussion...

...would that make them substantive in your mind?

Broadly speaking, yes; despite the process by which one may have arrived at that ownership, copyright/tm provides a means whereby one can produce a form of entitlement to those arms-- proving ownership-- and therefor could, conceivably, successfully defend them in court. In effect they would be "homesteading" those arms, as opposed to having a clear title (a grant) in the first instance. To further the land ownership analogy, the difference between arms held by prescriptive right and those held by substantive right could be likened to "squatters" rights, vs. deeded rights, while those with copyright/trademaked rights fall somewhere in the middle, like homesteaders.

[Joseph McMillan]

To further the land ownership analogy, the difference between arms held by prescriptive right and those held by substantive right could be likened to "squatters" rights, vs. deeded rights

But there is no difference. Ownership of land by prescription is every bit as valid as ownership by grant or deed. Moreover, prescriptive rights are even stronger under the civil law (of which the law of arms is considered to be a part) than under the common law governing land ownership. Here are the words of the English civil law expert Wolsely Emerton, DCL, from a 1904 article entitled "The Armiger" by the eminent Canadian heraldic scholar Marion Chadwick:

That rights are established by user is, in the Civil Law, a rule so notorious that the only difficulty is to choose one’s authorities; and it must be noted that (contrary to the general principle of English statutes of limitation) the Civil Law does not only “bar the remedy of an opponent,” but actually “confers a right” on the originally wrongful possessor. [Emerton then provides specific citations to the Institutes and Pandects, two of the classic sources of Civil Law.] Looking on the right to arms from the civilian’s [i.e., civil law specialist's] point of view, an unchallenged possession of twenty years at most would be sufficient as a rule.

It is important that the possession should have begun in good faith (which is, of course, presumed unless the contrary be proved), but it is not necessary that the good faith should continue till the time of “prescription” has expired.

Chadwick's full article can be seen at http://mysite.verizon.net/vzeohzt4/d...k-Armiger1.pdf.

[SlackerDrummer]

If the copyright in Ireland is actually for the blazon and not the exemplification, that further supports my point, not yours, unless what you want to copyright are the words. US copyright law protects the picture. The actual drawn image. The exemplification. If I paint your arms and draw a different helmet, a different style of mantling, put the motto on a different kind of scroll, those changes could be enough of a difference to make my illustration not a copyright infringement. The law considers the whole of the illustration, not the arms or crest in any sort of heraldic context. If it were as simple as you suggest, I'd be shouting my hallelujahs to the heavens. It's not like I want what I am arguing to be the case. Far from it.

If you were to trademark your arms (yes, you can trademark an exemplification of your arms), that protection is only good for what you put on your application. If you put "Armorial Advisor" as the service for which you are using your arms as a logo then that is where the limit of your protection lies - the act of providing armorial advice. That is my point. Not to mention, what is protected is the particular exemplification that you submit. So the later painting you paid John Ferguson to paint. It's not protected.

It would appear I am due a refund.

[Joseph McMillan]

It has nothing to do with any change and everything to do with the right to protect that to which I have exclusive ownership through a perfect title in law.

But, as Sir Crispin Agnew explains ("Conflict of Heraldic Laws", Juridical Review (1988); rpt. in Double Tressure (2009)), what you have a title to is a right in rem that, like all such rights, exists only in the jurisdiction in which it is created, unless other jurisdictions choose to recognize it. A copyright is another kind of right in rem. Something copyrighted in one country is protected in another country only to the extent the other country chooses to recognize the copyright. For copyrights, there are international conventions that generally provide for reciprocal protection, but even there the protection offered is limited by the receiving country's laws. For example, in the UK the Crown holds copyright of the King James Version of the Bible. This is not recognized or protected in the U.S.

There are no international conventions that provide for reciprocal protection of heraldic bearings, so a grant in one country may or may not be protected in another.

On the other hand:

Of course this is all intellectual debate as there is no historical context in which to place it (in the US court system).

It is, and for the life of me I can't imagine anyone else being interested at this point.... and if they are, maybe they need to get a life...

There actually is one single case that I've been able to find in which an American court protected a personal coat of arms against usurpation.

In 1947, Virginio F. Orsini sued the Eastern Wine Corporation for infringing the New York Civil Rights Law's provision against misappropriation of identity--specifically by placing the name Orsini and the Orsini coat of arms on its wine labels. Virginio Orsini claimed to be the senior member of the Orsini family, and argued that the use of his arms and last name constituted an infringement of his identity rights.

The company claimed that the law protected only a person's full name, that a surname alone was not subject to infringement.

The Supreme Court of New York ruled that the combination of the surname plus the coat of arms satisfied the requirements of the statute--the combination being equivalent to the use of the plaintiff's full name. The court issued an order restraining the company from using the Orsini name and arms on its wine bottles; the decision was subsequently upheld on appeal. Orsini v. Eastern Wine Corp., 190 Misc. 235; 73 N.Y.S.2d 426; 1947 N.Y. Misc. LEXIS 3032 (1947).

This case has been cited in other identity misappropriation cases, including in other states, but I've never seen it applied to another heraldic case.

[MacMillan of Rathdown]

Joe-- until this very moment (9:30 EDT) I was totally unaware of the Orsini v. Eastern Wine Company suit. It just shows that that there is always something of value to be learned if you hang around long enough! Tomorrow I'll have my secretary search out a copy of the case and add it to my files-- thanks for the lead.

As far as the discussion about copyright/trademark is concerned I'm bowing out least I find myself down at the law library again... something I had foresworn doing once I realised that it would prolong my association with dumb judges and deadbeat clients!

[SlackerDrummer]

Fair enough, Scott. It's been fun.

[Gael Ridire]

I'm entering this at the tail end and must say that it has been an interesting banter of points of opinions.

For what it is worth, I obtained a grant from the Chief Herald of Ireland in 1991. On immigration of my family around 1830 from Ireland to Canada, then into the U.S. the surname was changed. 1) In receiving a grant of arms my feeling was that I had reclaimed my birthright. Second) It was something concerning the heritage that could continue to be handed down in the family for generations to come and hopefully not forget from whence they came. 3) To be the highlight page in a 3500 page family history that took me 30 years to research and write. 4) I was displaying my individuality as a Gael which can be good & bad.

As for the pretension on social class it has already been stated; there are granted arms by authority, and burgher arms, period. To me what is important is the use of arms! I don't care by what authority.

Would I petition for a grant today? Probably not. Why? In twenty years the cost of a grant has nearly tripled from what I paid. But that isn't the main reason. My children who grew up with the letters patent on the wall, don't have any real desire to use or display them, especially their spouses. One of my daughters-in-law doesn't understand it at all. I no longer have the funds to have cast my own badges for the extending family (I can't find the molds and must have new one's made). I find myself alone in their use.

[WVHighlander]

Gael...Do you want to adopt a 30 something year old? I would be more than happy to carry on the arms!!