Google modifies its logos to honor holidays or famous individuals. Last week it created a logo that alludes to (but, Google alleges, did not copy), Joan Miro’s work, in honor of Miro’s brithday. The Miro estate complained, and Google, without admitting wrong-doing, pulled the logo by noon.
Some reaction was, in effect, gimme a break, either because there was no cause of action, or the use was de minimis, or the resulting press will be bad for the Miro estate.
With regard to trademark, consider whether there is confusion as to endorsement. If the user is aware of Google’s commemorative logo pattern, then confusion seems unlikely. However, not everyone is aware, and Google is pretty cryptic about it. In fact, I think part of the allure of the commemorative logo is that it functions somewhat as a puzzle.
Consider the copyright fair use analysis. In a case such as Ringgold v. Black Entertainment Television, Inc. 126 F.3d 70 (2d Cir. 1997), the owner of copyright in a poster argued that using a poster seen for 27 seconds as a decoration on a set of a TV show, was not de minimis use. Furthermore, plaintiff argued that were use of its poster to be deemed fair use, it would destroy any potential market for licensing its poster for set design usages. Is there a market for the Miro estate to license Miro-style fonts, and what effect might Google’s use have on such a market?
How is Google using the artwork? It seems clear that Google could clearly state that such and such a day was a great artists’s birthday, and then display a thumbnail image of that artist’s work as a link to information on that artist, searchable through Google. Its commemorative logo makes that point much more elegantly and subtly; however it leaves it vulnerable to the charge that it is appropriating a third-party’s copyrightable designs in order to decorate its home page.
Good exam question.
UPDATE: An anonymous reader advises that there has been a dispute in the past regarding use of MIRO-style fonts.
2d UPDATE: PRof. Patry weighs in heavily in favor of Google, in a post entitled “How Copyright is Getting a Bad Name.”