More digital law

It’s the fingers again. By now you heard about the dispute about the “thumbs up” “trademark” claim being bandied with respect to Roger Ebert, the movie reviewer. A trademark in “thumbs up”? Yes, I was mighty skeptical. Now the Chicago Tribune interviews IP lawyer E. Leonard Rubin (e-ven his name says high-tech IP!) and he explains it all:

Q: So if Richard Roeper or his new semipermanent guest host, Robert Wilonsky, flashes a thumbs-up sign, Ebert could sue him?

A: In the opinion of intellectual property/entertainment lawyer E. Leonard Rubin, no. Ebert and Siskel trademarked the “thumbs up”/”thumbs down” catchphrases in relation to movies, and “Two Thumbs Up” has become a powerful identifier for the show as well as a potent marketing tool for the studios. But the gesture of raising or lowering thumbs to indicate approval or disapproval dates back to ancient Rome, so it’s not original and cannot be trademarked.

I agree with E. (I’d like to think someone of his stature wouldn’t use “trademark” as a verb and will ascribe that to some editor at the Trib coming back to the office after a long lunch across the street.) So what about the fuss we made a while ago about the Jay-Z / Diamond Dallas silly hand gesture dustup? Would the same reasoning apply?

It would — only the result might well be different, because (despite the sarcasm displayed at the time here) unlike the thumbs up / thumbs down gesture, the particular combination of joints at issue in the rapper-wrestler case seems relatively novel and, for its utter incomprehensibility, pleasantly arbitrary — as a good trademark should be.

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Author:Ron Coleman

I write this blog.

2 Responses to “More digital law”

  1. Steven Robinson
    October 24, 2010 at 9:09 am #

    RC: Maybe, if you squint and stretch just as far as you can, the thumbs up gesture, in the context of movie reviews, might be an element of a protectible persona under a right of publicity. But if I had the choice, I’d give that a thumbs down, too.

  2. October 25, 2010 at 12:46 am #

    Well put, Steven. I’ll spare you one more thumbs gag!