Intellectual Property Rights In Branch Armory

An interesting point came up as part of the recent discussion of copyright and armorial registrations: what rights does the SCA as an institution have with regards to the images and designs used in devices and branches?

The question was triggered by an element of the Society’s rules found in section XII of the SCA’s “Corporate Policies” document, which is inexplicably difficult to locate online, but which can be found in a revision markup for changes made in 2013.

The names (group and award/order) and armory (devices and badges) registered by Laurel to the SCA or to branches are to be considered service marks of the SCA. This recognition is to formally recognize these marks and our use of them to the purpose the US Patent and Trademark Office terms “collective marks.”

(This clause appears to date from the first quarterly BOD meeting of 2005. The same phrasing also appears in the SCA’s Social Media Policy.)

Due to what seems to be a good-faith misunderstanding, some people seem to have misinterpreted this issue in a way that suggests that the SCA, Inc.’s central organization in Milpitas, sometimes referred to as the “Corporate Office,” owns the copyright to all armory registrations, e.g. to the artwork submitted via OSCAR for devices and badges, such that permission from that office would allow someone to use that artwork in a commercial venture, or conversely that permission from that office would be required before someone could commission an artisan to create a  work that incorporated their own personal arms.

In short, none of that appears to be correct.

It may seem surprising that the service mark and copyright for a particular image belong to two separate entities, but they come from separate areas of law.

A service mark is like a trademark, but for services as opposed to products. Categorizing the arms of the society and its branches as service marks provides the society with institutional power to object if someone else uses them in a way that would trade upon the society’s reputation.

On the other hand, copyright is a protection for the creator of a specific embodiment of an original creative endeavor. In the United States and other countries which are signatories to the Berne Convention, all eligible works are immediately covered by copyright without any registration requirement, so if you draw something, other people can not distribute or sell copies of it without your permission.

For example, if a for-profit company decided they were going to run a “Middle Kingdom Renaissance Fair” and printed up advertisements with the Middle Kingdom’s arms, the SCA corporate office could file a legal action against them on service-mark grounds, even if there was no copyright infringement because that company had drawn their own illustration of the dragon featured in the Middle’s arms.

On the other hand, if the SCA corporate office grants a private leather-working business a license to sell belts imprinted with the arms of all of the kingdoms, that only covers the service-mark claims, and means the business has permission to create and reproduce their own illustrations of those designs — it does not mean the business can simply copy the branch arms out of OSCAR or from the kingdom websites without seeking permission to do so from whomever originally illustrated each of those images.

The service-mark claim limits third parties from using branch arms, but it doesn’t create a restriction on SCA branches themselves using those designs (including those of other branches) or commissioning works from artisans, because as stated in the Social Media Policy:

4.c.ii. Kingdoms, principalities, regions, baronies, cantons, shires, etc. are all part of SCA, Inc. are entitled to use SCA trademarks and service marks without limit.

The service-mark claim does not appear to interfere with common situations in which individuals incorporate branch badges into their heraldic banners and similar displays, both because the branches typically have specifically granted permission to their populace to do so, and because those individuals are not at risk of passing off a product or service as an official SCA offering.

And as one would expect, none of this applies to individual armory, as noted in the Social Media Policy: Nothing here is meant to limit the use of individual badges or arms, which of course, belong to the individual member.

As with the last post, all of the above should be read with the knowledge that I am not a lawyer, and none of this should be taken as legal guidance — I’m just attempting to describe a somewhat-obscure issue as best I understand it.

If I’ve misinterpreted something, please let me know, and if there’s a clearer description of this topic posted somewhere else, I’d love to hear about it!

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