“Public Domain” understanding

An image that can be found in an image provider’s database marked “public domain” does not make it so. Obviously, the recent B.J. Novak odyssey illustrates how far things can go sometimes, but that does not mean his image actually was public domain, that ad agencies and companies were free to use his image on products or in advertising, or that he was without recourse (though he has indicated not being inclined to pursue the end-users). The term “public domain” (like many aspects of intellectual property) gets misused often. The headline of a recent article “How your photo could end up in the public domain – and used in ads around the world” takes a substantial leap and demonstrates the point, though the substance of the article may be helpful.

How photos end up in the public domain – and used in ads around the world

Disney seeks to trademark SEAL Team 6, the elite special forces unit that tracked down Osama bin Laden

Just two days after President Obama announced that Osama bin Laden had been tracked down and killed in Pakistan, Disney applied for the trademark “SEAL Team 6” with the United States Trademark Office.  See http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.3   Disney isn’t the only one with a pending trademark on SEAL Team 6 though.  See  http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.1 and http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.2 which also are trademark applications by third parties for SEAL Team 6.

Disney is reportedly developing a production based on the story of the elite special forces team that tracked down and killed Osama bin Laden, so no doubt this was their objective in seeking to trademark this name.  The article at the following link makes a good point that GI Joe was once a military reference before it became trademarked and turned into a TV and toy brand:  http://eonline.mobi/answer_bitch_detail.ftl?id=b242656&last_page=4&paginate=0.  Another article, from the Christian Science Monitor, reports that a behind-the-scenes resolution between Disney and the Navy may be a likely outcome of this trademark application.  See http://www.csmonitor.com/Business/2011/0519/Who-owns-SEAL-Team-6

All of this raises an intriguing question:  are there any right of publicity interests in the individual members of that SEAL Team 6?  Interesting in part because those persons will likely remain unidentified for a host of reasons.  What about the notion that certain aspects of the military are either the exclusive jurisdiction of the Federal government (like the Presidential seal), or essentially public domain (like the State of the Union address or judicial opinions)? 

It will be interesting to see how the Examining Attorney assigned to Disney’s application handles this file.