MTA’s way or the highway

I’ve been watching these guys at the MTA and their IP enforcement program for a while now.  Once was for a client, who, regrettably, didn’t want to fight.

  • I first picked up on this over four years ago, when I wrote,

The New York Times reported (yes, reg. req.) last week that New York’s Metropolitan Transit Authority is scrambling to enforce trademark rights in its wide array of iconography, including the famous alphanumeric train symbols known to all New Yorkers. . . .

Still and all, there is an interesting trademark policy issue in here somewhere. It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

  • A few months later I reported on a “crackdown” by the MTA on unauthorized distribution of copyright-protected maps of the subway, and cited Bill Patry, who said, in a similar vein:

There is no statutory bar to protection for original subway maps, therefore. There should, though, be a common sense bar but that, like common decency, is apparently lacking.

  • Later in 2005 I saw the MTA’s overreaching finally exceed the breaking point, when it tried to register trademark rights in this original phrase (they were succesful, too).If you see something say something

 

What, really, is the point?  It’s just your (my) tax money at work.

  • In 2006 I noted a story reporting that — unlike a lot of other copyright, trademark and right-of-publicity owners who have not made a peep — the MTA made those masters of confusion, “Jews for Jesus,” stop using the transit symbols in their underground evangelizing, though in reality, they probably didn’t have to.
  • Then, most recently, I “covered” an item — involving official New York City family planning devices bearing a “subway theme,” regarding which I suggested, somewhat tongue in

cheek, that this would seem to undermine any secondary meaning connecting the subway route symbols and subway routes at all.

This suddenly came to my attention again, when, three weeks ago, the following comment appeared on that two year old post:

There is an interesting discussion going on about this at Flickr [I assume he means this -- LOC]. The MTA is now trying to stop people from selling prints of pictures they took on the subway apparently because they contain the route symbols. What will this mean to the thousands of prints that are sold by railfans at train shows every year?  Unfortunately the route symbol is also a functional display that is part of the train – if it is photoshopped out of the picture then the picture becomes editorially and historically inaccurate.  They are going too far with this and it is not as if these pictures earn huge profits – no-one ever got rich selling prints at train shows!

No, no huge profits — but huge employment justification for people who work in municipal IP enforcement agencies.  That story has been picked up here.

  • There’s more!  There’s this — it seems that New York’s MTA is asserting “rights” in route symbols that don’t exist in New York, but do exist in San Francisco, against the designer of t-shirts bearing the gags below!

Parody Subway Logos

Read about that here and here.

  • And now, the item that reminded me of all this:

New York’s Metropolitan Transportation Authority says the maker of the StationStops iPhone app does not have permission to use MTA schedules to back his app, ReadWriteWeb reports.

Chris Schoenfeld received a Digital Millenium Copyright Act notice asking him to take his application down, as MTA’s train and bus schedules were copyrighted intellectual property.

It’s idiotic.  Unlike private parties, the City [and the "authorities"]– which, historically has acted as if taxpayer money grew on trees — has “no budget.”  No budget is a term of art in the field of intellectual property for “we don’t settle, because we don’t have to.”  Merits are irrelevant when there is no down side to litigating; all the more so when, to the contrary, someone’s job or department or seniority depends on finding things, no matter how idiotic, to justify his existence.

That looks a lot like what’s going on here.  See, there’s nothing private parties can do in business and law that the government can’t do worse!

Maybe next time I see this guy on the train, I’ll ask him about it.

UPDATE:  Hey, good things come from public embarrassment, even if the effect is sometimes only temporary!  Chris Schoenfeld reports good news:

MTA has made an official statement backing off my website completely, reversing their lawyer’s vehement condemnation and call for the takedown of my website last week via telephone.

Martin Cassidy has posted his story on the fight between StationStops and the MTA in the Stamford Advocate.

In the article:

Schoenfeld said Freundlich also told him that the stationstops.com site may infringe the MTA’s copyright, but (MTA Spokesman) Ortiz said the MTA has no issue with the site.

But wait, there’s even…  Moore! Joe Moore of 40withegg — the San Francisco guy — wins:

Thanks to the persistence and support of many people the NY MTA has acknowledged that their own claim that I violated their trademark was a mistake.

After contacting me on 09/02/2009, SF Weekly writer Anna McCarthy describd my Muni-shirt story in her article “NYC’s Metropolitian Transporation Authority Threatens Man Marketing S.F. Muni T-Shirts”. In addition, she contacted the NY MTA regarding their insistence that my art infringes upon their intellectual property rights (trademark). Their response — what trademark violation? Quoting Ms. McCarthy’s article:

[In] a recent phone interview, a spokesman for the agency, Aaron Donovan, seemed to backtrack: “We have no claim on Muni’s icons, we would need to look into the specifics of this case in greater detail to determine why the letter may have been sent,” he said. “The images on Mr. Moore’s blog did not appear to show anything that would represent a trademark violation against the New York MTA.”

No they didn’t, did they?  The MTA is way off track here. Who’s conducting this train, anyway?

RDC in subway route letters

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Author:Ron Coleman

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22 Responses to “MTA’s way or the highway”

  1. September 2, 2009 at 9:09 pm #

    It is great to read an intellectual property lawyer identifying not just my case or someone else’s, but discussing how the MTA licensing program, very broadly, is completely out of control, with specific anecdotes which are all too familiar to me.

    I would also point you to the case of F-Stop Bagels, which from what I understand, was simply a bagel shop next to the F Stop.

    Thanks to MTA licensing, it is now know as ‘Stop Bagels’:

    http://gothamist.com/2005/11/22/mta_to_bagel_sh.php

    MTA’s licensing program is gratuitous, overreaching, frivolously litigious and in no way conducted in the spirit for which intellectual property law was intended.

    Its just profiteering on the iconic imagery of the greatest city in the world to help fill the cash and tax black hole that is MTA’s financial catastrophe.

    BTW, just a correction, MTA is a semi-public company funded by the state of NY, not NYC. Bloomberg has no administrative control of MTA, Albany does.

    Sometimes.

    Its an organization which truly has little inventive for financial efficiency nor accountability for irresponsible corporate behavior.

    Its the worst of all worlds.

  2. September 3, 2009 at 3:36 am #

    All of this publicity encouraged me to upload my images to Zazzle.com rather than CafePress. No news from the NY MTA this time (so far) but Zazzle did pull one of the products: the postage stamps. The reason? “Design includes material that Zazzle believes would hurt its reputation.” — Joe

  3. BMTLines
    September 3, 2009 at 10:02 am #

    It gets even worse – the MTA forced the removal of pictures for sale on Cafepress and Zazzle. It is unclear at this time if they are claiming to own the rights to every image of a subway train taken in New York or just the ones that display the route symbol.

  4. September 4, 2009 at 12:29 am #

    Success! The SF Weekly picked up my story, made some phone calls to the NY MTA, and verified they “have no claim on Muni’s icons,” and “would need to look into the specifics of this case in greater detail to determine why the letter may have been sent.” In addition, the NY MTA states that the “images on Mr. Moore’s blog did not appear to show anything that would represent a trademark violation against the New York MTA.”

    Thanks again everyone for your support!

  5. April 9, 2011 at 3:34 pm #

    It’s happening again. This time an artist was told that she cannot use the backs of discarded Metrocards for her paintings

    http://vhmckenzie.blogspot.com/2011/04/mta-is-throwing-its-weight-around-and.html

Trackbacks/Pingbacks

  1. Ron Coleman - September 2, 2009

    LIKELY / CONFUSION MTA’s way or the highway: I’ve been watching these guys at the .. http://bit.ly/2zreD1

  2. Ron Coleman - September 2, 2009

    LIKELY / CONFUSION MTA’s way or the highway: I’ve been watching these guys at the .. http://bit.ly/2zreD1

  3. Ron Coleman - September 2, 2009

    LIKELY / CONFUSION MTA’s way or the highway: I’ve been watching these guys at the .. http://bit.ly/2zreD1

  4. VBalasubramani - September 2, 2009

    MTA (NY) cracks down on Flickr photos & asserts rights in route symbols (by @RonColeman) http://bit.ly/2zreD1 (????)

  5. PostRank – Law - September 2, 2009

    MTA’s way or the highway http://bit.ly/2c6eei #postrank #law

  6. Sara - September 2, 2009

    RT @stationstops: NYC IP Lawyer @RonColeman speaks out on MTA’s ridiculous licensing program: http://bit.ly/qLrcE GREAT ARTICLE!

  7. NYC IP Lawyer Ron Coleman: MTA’s Licensing Program “Idiotic” | StationStops - September 2, 2009

    [...] It was great to come home today to a fantastic and thorough trouncing of MTA’s egregious licensing practices on one of the top IP law blogs in NYC: Ron Coleman’s LIKELIHOOD OF CONFUSION®. [...]

  8. Jehiah - September 3, 2009

    RT @stationstops: NYC IP Lawyer @RonColeman speaks out on MTA's ridiculous licensing program: http://bit.ly/qLrcE

  9. Meg Langley Grainger - September 3, 2009

    MTA’s way or the highway http://ow.ly/nSII – I wonder if this implications for #$Openstreetmap? RT @RonColeman

  10. shoutingloudly - September 7, 2009

    More great coverage of the MTA’s ridiculous over-enforcement of their IP: http://is.gd/2YV0G … I should email this guy.

  11. Herman v. MTA: Rumors Already Flying - shouting loudly - September 7, 2009

    [...] I have, however, emailed attorney and blawger Ron Coleman. I can’t pay him to take the case, which puts a damper on the odds that he’ll take on the MTA for me, but it doesn’t hurt to ask. After all, he’s publicly grousing about other clients who wouldn’t take it to court. [...]

  12. City Council To MTA CEO: “(MTA) Operational Data Should Be Wholly In The Public Domain” | StationStops - September 10, 2009

    [...] Brewer joins The Electronic Frontier Foundation, Gov 2.0 Spokesman Tim O’Reilly, NYC IP Attorney Ron Coleman, and Stamford Advocate Opinion Editor Thomas Mellana in its opposition to MTA’s licensing [...]

  13. Who Controls Data About Public Transportation? « Free Expression Network - September 11, 2009

    [...] they may be able to wrench some value from their trademarks (even though this tactic, too, has backfired embarassingly for NYMTA,) there is no economic value in their schedule information. Any attempt to restrict [...]

  14. Left to chance » Who Controls Data About Public Transportation? - September 11, 2009

    [...] they may be able to wrench some value from their trademarks (even though this tactic, too, has backfired embarassingly for NYMTA,) there is no economic value in their schedule information. Any attempt to restrict [...]

  15. Press Coverage of MTA vs StationStops More Than Doubles | StationStops - September 14, 2009

    [...] OF CONFUSION® MTA’s way or the highway Merits are irrelevant when there is no down side to litigating; all the more so when, to the [...]

  16. newslife site » Who Controls Data About Public Transportation? - September 17, 2009

    [...] they may be able to wrench some value from their trademarks (even though this tactic, too, has backfired embarassingly for NYMTA,) there is no economic value in their schedule information. Any attempt to restrict [...]

  17. StationStops Thanks Brooklyn Law IP Clinic, Others for Legal Support | StationStops - October 15, 2009

    [...] OF CONFUSION®’. Ron did not support, represent, or advise me directly, but his expert criticism of MTA’s licensing practices were outstanding in helping me explain to people what was going [...]

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