Monthly Archives: November 2020

Faux Postage With Stickers and Image Transfers

Art, Holiday Crafts, Mixed Media, Paper Crafts, Rubber Stamping, , , , , , , , , , , , , , , , , , ,
Two finished Christmas faux postage sheets.
Two finished Christmas faux postage sheets. I’m going to make copies of these and cut them up to use on mail, tags, packages, and more.

Tom and I are spending part of this weekend planning our Christmas crafts, card list, and gift list. 2020 will be our third Christmas as a married couple! It’s always been part of my tradition to participate in as many Christmas crafts as possible. Since we are Roman Catholic, Christmas lasts a long time – over a month.  Both for cultural and religious reasons, the Christmas season for us is from the day after Thanksgiving to January 6. Activities all through this time period are how I celebrate Christmas, I don’t just celebrate it for one day. Integrating crafts and creative pursuits as much as possible is one way I show gratitude to God for the gift of being able to share creativity with other people, whether through a handmade gift, a piece of mail or a social media post. There is probably going to be more inspirational holiday sharing online this year than ever before and I’m going to try to do my part!

I’m noticing that Tom and I are developing our own set of Christmas traditions, incorporating some things transferred or revived from our families of origin, combined with activities that are unique to us as a couple. In no particular order we participate in:

1. St. Nicholas Day – we used to celebrate this when I was young, and since it is very special to me we have brought it back.

2. Daily Advent prayers with candles – we’ll be getting the candle set out soon!

3. Charitable donations.

4. Reverse Advent calendar food pantry donation – we did this last year and found it worthwhile so are going to do it again this year. It is a great way to remember to be grateful, keeping in mind what other people might really need instead of just what we want.

5. Christmas/New Year cards designed by me.

6. Handmade gifts.

7. Masses and worship.

8. Christmas poem by Tom.

9. #12daysoftomsbeard

10. Christmas Faux Postage.

11. Christmas decorations.

12. Holiday media and reading (such as Hallmark Christmas movies, prayer books and the Bloomin’ Christmas book).

13. Christmas baking and food.

14. Festive gift packaging.

15. Christmas stockings.

16. Christmas Journaling and Icebreaking Activity Cards.

Today I’m going to focus on this year’s Christmas Faux Postage. It’s going to play a part in this year’s card design and possibly other craft projects too so I’m working on the faux postage first. As I did last year, I printed out two each of templates for making faux postage that I made available online, and Tom and I each started building compositions on two sheets. Here are two articles I wrote last year showing how I made designs with the two templates, including links for downloading the templates.

Low Tech Faux Postage: Part 1

Low Tech Faux Postage: Part 2

This year to start off our stamp sheets, Tom and I sat down with the printed templates, stickers, red, green and white image transfers that I made last year, collage papers and various markers and pens.

Developing four Christmas themed stamp sheets
Developing four Christmas themed stamp sheets

I’m in the process of finishing up those stamp sheets by treating them in a similar manner as the ones in the two tutorials linked to above, Low-Tech Faux Postage parts 1 and 2. I have stamped out some tiny words such as “US Postage” on strips of scrap paper and am gluing them down where there is room on the stamps designs. I’m making borders with mixed media. I’ll add some postmark stamps to the sheets and use stamps and perhaps stencils to add a little fine texture here and there where I think it’s needed. When the stamp sheets are done, I’ll get color copies made and cut up the copies into individual stamps to use on all kinds of Christmas paper crafts.

Contracts and Shared Economy Applications

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Here is another homework assignment for my Media Organization Regulations class. Technology opens up new ways of trying to make an income, and new legislation of various kinds often follows after the effects on society and other businesses become manifest. If you are interested in exploring the “gig economy”, “side hustles” or income streams based on assets that you share such as Uber, Airbnb and similar services, you might find this material interesting. I am not a law student or attorney, I am an Advertising and Marketing Communications major. This homework has been graded but I didn’t change anything except an instance of repetitive wording before publishing.

“Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
22 November 2020

Contracts and Shared Economy Applications

A contract must include the following elements (“Contract”):

  • Mutual assent – an offer has been made by one party and the other has accepted it.
  • Adequate consideration – there is an agreement to a payment or compensation of some kind for performing the work.
  • Capacity – do the parties meet the legal requirements for being eligible for entering into contracts?
  • Legality – is the purpose of the contract within the law?

Laws of the different states in the U.S. might have different interpretations of some of the elements of the above categories, with allowance for different remedies if a party is in breach of a contract (“Contract”).

A digital contract is a contract in which no paper is used.  The technology used to indicate acceptance of the contract does vary, and there are some types of contracts that cannot legally be executed digitally (O’Connell).  In order for some digital contracts to be valid and enforceable, measures having to do with security and consent must be taken that are unique to digital contracts (O’Connell).  These additional steps don’t have to do with the basic elements of a contract, however – the elements have to be present whether the contract is verbal, digital or written on paper.

In New York City, building owners, called “hosts” in this context, have to follow a strict set of regulations if they want to offer their property for short-term rentals on shared economy web sites such as Airbnb (“How to Navigate…”).  Other cities in the United States have adopted similar restrictions (“How to Navigate…”).

Proponents of these regulations in New York City say they are intended to hold down housing costs, make it more difficult for property owners to dodge taxes, prevent residential buildings from being turned into hotels and to increase property owner compliance with safety regulations (“How to Navigate…”, Kerr).

Those who want more freedom for hosts in managing their own property are concerned that the legislation is designed to help the hotel industry and unions at others’ expense (“How to Navigate…”).

In Brentwood, MO where I own a condominium, if I were to contemplate using it for short-term rentals, I would be subject to any applicable regulations set by the condo complex, the municipality, the county and the state (Capes Sokol).  A quick search shows that city regulations in Brentwood prohibit any rentals of less than 30 days duration in the interests of reserving residential areas for long-term living (Miner).  If I were to attempt to defy the law and create a listing for my condo on a short-term rental shared economy web site, any contract I might enter with a potential customer would be invalid because the purpose of the contract would not be within the law (“Contract”).  Missouri law is silent on shared economy rentals so smaller government entities within Missouri are free to make their own regulations (Capes Sokol).

I’m generally in favor of more freedom rather than less, especially when making decisions about what to do with one’s own property. However, living close to other people does necessitate consideration for neighbors and we already accept a lot of laws that enforce some concessions from members of the community that they might not offer voluntarily. Condominiums and apartments have additional special considerations that detached single family homes don’t have.  I can understand the concerns of someone who thought they were buying a home but find themselves inadvertently living in a hotel.

New York City has taken the additional step of making just creating a shared economy listing for an ineligible property illegal, and punishable by substantial fines (Fishman).  Airbnb is currently challenging this law on free speech grounds and until the issue is resolved New York City is refraining from enforcing it.  At first I thought the city might be going too far, so I decided to look at how they handle advertising for another service that is illegal – prostitution.  In New York law, just to offer the service is illegal (FindLaw), so that seems consistent with the ban on advertising short-term rental listings where they are not allowed.”

Works Cited

Capes Sokol. “Important Considerations for Short-Term Property Rental Hosts in Missouri.”

Capes Sokol, 2016, www.capessokol.com/insights/considerations-short-term-property-rental-hosts-missouri/. Accessed 22 November 2020.

“Contract.” Legal Information Institute, 2020, www.law.cornell.edu/wex/contract. Accessed 19 November 2020.

FindLaw, “New York Prostitution Laws.” Thomson Reuters, 2018, statelaws.findlaw.com/new-york-law/new-york-prostitution-laws.html. Accessed 22 November 2020.

Fishman, Steven. “How to Airbnb in New York City.” Nolo, 2020, www.nolo.com/legal-encyclopedia/overview-airbnb-law-new-york-city.html. Accessed 22 November 2020.

“How to Navigate the NYC Airbnb Law.” Shared Economy, 2019, sharedeconomycpa.com/blog/nyc-airbnb-law/. Accessed 22 November 2020.

Kerr, Dara. “NYC fines Airbnb hosts for ‘illegal’ home rentals.” CNET, 2017, www.cnet.com/news/airbnb-nyc-law-hosts-fined-for-illegal-home-rentals/. Accessed 22 November 2020.

Miner, Doug. “Brentwood clarifies law: no to short term rentals.” 40 South News, 2018, 40southnews.com/brentwood-officials-pass-bill-to-prohibit-short-term-rentals/. Accessed 22 November 2020.

O’Connell, Ann. “Electronic Signatures and Online Contracts.” Nolo, 2020, www.nolo.com/legal-encyclopedia/electronic-signatures-online-contracts-29495.html. Accessed 22 November 2020.

The Right to Privacy

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The new season of the Netflix series “The Crown” is out. Around this time last year I wrote a homework assignment paper about the production elements in the show for Media and Culture class. As I start to view the new Season 4, I’m recalling our studies last week in Media Organization Regulations class on the legal aspects of privacy. How does what we learned illuminate how entertainment companies depict real people in a fictionalized drama? Here is an amalagamation of a couple of last week’s homework assignments. If you like to watch “The Crown” or other dramas based on historic events and real people, you might find some of the legal considerations involved interesting. In the series are also depictions of emotional abuse and mental illness, topics I’ve written about before and which again came up in last week’s homework. Abuse takes many forms and some of them are perfectly legal. These selections have been graded by my professor but I didn’t make any changes before publishing. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!

The Right to Privacy

The theory of a right to privacy developed in US law over about the last 130 years, derived from the 3rd, 4th, 5th and 14th amendments (Trager et al 234). The right to privacy is defined as “1) The right not to have one’s personal matters disclosed or publicized; the right to be left alone. 2) The right against undue government intrusion into fundamental personal issues and decisions” (Legal Information Institute “Right to privacy”).

A tort is a transgression by one person or entity on another’s rights, resulting in an injury (Trager et al 234). Law school dean William Prosser described four torts in the following categories; “false light, appropriation, intrusion and private facts” (Trager et al 235). Commercialization and the right to publicity are sub-categories under appropriation (Trager et al 235). The right to publicity “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion” (Legal Information Institute “Publicity”). Besides being a subset of the right to privacy, the right to publicity differs in that it prevents unauthorized commercial exploitation of an individual rather than addressing non-commercial violations of rights.

right_to_privacy_diagram

False light, intrusion and private facts only apply to living persons (Trager et al 235). The appropriation tort is broader. It applies to living persons and in addition the deceased, businesses, non-profits and associations (Trager et al 235). The states vary a great deal in which torts they recognize – many only recognize single categories or subsets and not necessarily the same ones (Trager et al 235).

Celebrities don’t forfeit their right to privacy by being celebrities, but since people want to know about them many of their activities could be considered newsworthy (Trager et al 246). That doesn’t mean people are entitled to know facts about a celebrity that are not determined to be in the public interest (Trager et al 260, 262). A person’s notoriety might make them the licit subject of a satirical, artistic or transformative work that stops short of commercial use (Trager et al 248-249), which would interfere with the celebrity’s right to publicity.

Appropriation, Commercialization and Political Speech

Appropriation torts are recognized by 46 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico (Trager 235).  The remaining four states have yet to rule on appropriation (Trager 241).  Commercialization and the right to publicity are the two torts included in the privacy law category of appropriation (Trager 235).  Commercialization, also known as misappropriation, is the act of using the likeness or name of a living or dead person in advertising or for commercial purposes without seeking permission from the individual in question or that of the heirs (Trager 236, 241).

The commercialization prohibition is less likely to be applied to a deceased person than right of publicity because it is intended to prevent emotional distress to an individual by upholding the person’s dignity in preserving their personal right to privacy.  As a personal right, it is not usually thought by the courts to apply after death, unlike the right to publicity which deals with the monetary value of one’s identity a form of property that can be transferred or inherited (Trager 242).

Dan Frazier is a retailer and activist who sells left-wing themed political merchandise and other products through his company Lifeweaver LLC (Lifeweaver LLC, team@lifeweaver.com).  In the first decade of the 2000s he started selling anti Iraq war t-shirts with the names of U.S. soldiers who had thus far died in the war as part of the design in small print.  Enough families of the deceased soldiers were outraged by their family members names being used to make money for Frazier that laws were passed in several states making the sale of merchandise that appropriated soldiers names or likenesses without permission illegal (Fischer, “Mom Wants Dead…”).  Frazier’s home state Arizona was one of those passing such a law (Fischer).  Frazier, represented by the ACLU in a case heard in a federal court in Phoenix, was able to stop state and local officials from prosecuting him, citing First Amendment rights to freedom of speech.  The federal court declined to strike the Arizona law from the books and decided to let future similar cases be decided on their own merits (Fischer).  The defenses against appropriation are newsworthiness, the appropriated material being in the public domain, freedom of speech under the First Amendment, incidental use, self promotional ads for the mass media, and consent (Trager 245). How would these defenses possibly apply to Frazier’s case and any future cases that are similar?

Newsworthiness

The U.S. Supreme Court has decided an appropriation case based on newsworthiness before, in hearing whether a news station deprived stuntman Hugo Zacchini of his rights to make a profit from his human cannonball act by airing the entire act as part of a news broadcast.  The court found in Zacchini’s favor, giving his right to publicity more weight than the news station’s First Amendment right to free speech (Trager 247).  In Frazier’s case, newsworthiness is obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW) but not as a factor in the decision (Frazier 07-CV-8040-PHX-NVW) though perhaps it could have been.  Deaths in war are news, and courts have previously found that newsworthiness is a defense even though news content is sometimes sold (Trager 246).  Dan Frazier presents his company as a retailer of products as opposed to a news organization (“Campaign Finance Report…”, team@lifeweaver.com).

Public Domain

The names of those killed in war are public information, as again obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW), and in my opinion would qualify as factual information that is in the public domain (Trager 248).

First Amendment

Most prominent in the complaint and the court’s findings are issues concerning free speech under the First Amendment. Cited in the decision was a U.S. Supreme Court case, Riley v. National Federation of the Blind, which ruled that if speech is a blend of commercial and some other purpose, the two purposes cannot be parsed out and must be considered together. Given this finding, Frazier’s t-shirts were determined to be protected by First Amendment rights as any other type of political speech would be (Frazier 07-CV-8040-PHX-NVW).

Ads for the Media

Mass media may use names and likenesses of public figures in advertisements for products if the identity-related elements are part of the original content (Trager 251).  The court in Frazier’s case considered but declined to evaluate separately the legality of the t-shirt products themselves and catalog pictures of the t-shirts with close ups showing some of the soldier’s names.  Perhaps the court did not feel it necessary to comment on whether it mattered in this context whether the names were of private or public figures since it had already found that pictures of the merchandise were “inextricably intertwined with otherwise fully protected speech” (Frazier 07-CV-8040-PHX-NVW).

Consent

Frazier made no pretense to claiming consent.  His web site included a statement reading, in part, “I have no plans to remove any names or discontinue any of these products, no matter how many requests I receive” (Watters).  He and his legal team believed they did not need it, and were eventually found to be correct in the legal sense (Frazier 07-CV-8040-PHX-NVW).  Frazier’s personal code of ethics did not preclude him from acting in a way that caused some families of the fallen soldiers listed on the t-shirts to experience what they categorized, but were unable to prove in a Tennessee court, as negligent and intentional “infliction of emotional distress” (Read).

Incidental Use

Frazier did not need to invoke the defense of incidental use to justify the soldier’s names on the t-shirts, but in my opinion incidental use would have applied (Trager 252).  An individual soldier’s name was not the main focus of the shirt design and was in a font small enough to only be legible at close viewing (Frazier CV07-8040-PCT-NVW).

Lanham Act

In my opinion the commercial appropriation issues invoked by the t-shirt design are not in the “zone of interest” of the Lanham Act of 1938, which is concerned with false or misleading advertising (Trager 556).

Works Cited

“Campaign Finance Report 2010 March/May Regular Election.” City of Flagstaff, Arizona, 2010, www.flagstaff.az.gov/DocumentCenter/View/10843/Dan-Frazier. Accessed 15 November 2020.

Fischer, Howard, “Antiwar T-shirts win protection.” Capitol Media Services, 2008, azdailysun.com/news/antiwar-t-shirts-win-protection/article_d0dd0588-d6dc-5b28-acfe-70771736099a.html. Accessed 15 November 2020.

Frazier, Dan vs. Defendants. CV07-8040-PCT-NVW. 2008. Print.
—. 07-CV-8040-PHX-NVW. 2008. Print.

Legal Information Institute. “Right to privacy.” Cornell Law School, 2020, www.law.cornell.edu/wex/right_to_privacy. Accessed 12 November 2020.
—. “Publicity”. Cornell Law School, 2020, www.law.cornell.edu/wex/publicity. Accessed 12 November 2020.

“Lifeweaver LLC.” Bizapedia.com, 2019, www.bizapedia.com/nm/lifeweaver-llc.html. Accessed 15 November 2020.

“Mom Wants Dead Son Off Anti-War Shirt.” CBS Interactive Inc., 2008, www.cbsnews.com/news/mom-wants-dead-son-off-anti-war-shirt/. Accessed 15 November 2020.

Read, Robin, et al v. Lifeweaver, LLC et al. 2:08-CV-116. 2010. www.leagle.com/decision/infdco20100506b78. Accessed 15 November 2020.

team@lifeweaver.com, “Lifeweaver LLC.” 2020, lifeweaver.com. Accessed 15 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Watters, Jesse “Confronting Frazier.” BillOReilly.com, 2006, www.billoreilly.com/b/Confronting-Frazier/-643011088989176289.html. Accessed 15 November 2020.

 

What does it mean to be considered “libel-proof”?

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Here is a homework assignment for my Media Organization Regulations class at Webster University. Each week we have a legal question to answer in the form of a short paper, as well as other writing assignments. Every once in a while I like to put one of the more interesting pieces here on my blog. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
7 November 2020

What does it mean to be considered “libel-proof”?

In order to win a libel case, a plaintiff must prove that a contested statement fulfills all of the elements of libel (Trager et al 149-166).

  1. The statement must purport to be a fact, that is, according to a dictionary, “a piece of information presented as having objective reality”, not an opinion statement (Trager et al 150).
  2. The statement must have been published, which consists of posting to the internet, printing in a periodical publication, or broadcasting over airwaves. Publishing includes mass media, but it not limited to only mass media. It is only necessary for one other person besides the subject and source to have seen the information in one of the above media channels in order for it to be considered published (Trager et al 150).
  3. The plaintiff must be identifiable as an individual or possibly in some cases a member of a small group. Identification is not necessarily limited to just using the person’s name (Trager et al 155).
  4. The content must defame the plaintiff, that is cause damage to their reputation (Trager et al 156).
  5. The plaintiff must prove that the allegation is false (Trager et al 160).
  6. The plaintiff must be able to show actual damage or harm (Trager et al 150).
  7. The defendant must be found to be at fault either by actual malice in defaming a public figure or the lower standard of negligence if the target of the defamatory statement is a private figure (Trager et al 163).

In most cases, libel law is presumed to help people protect their own good reputation, but in cases where the plaintiff’s reputation is already significantly damaged, the libel-proof plaintiff doctrine might be invoked in order to deny the plaintiff a finding of libel (Hudson 14-15).  For example, the Tennessee Court of Appeals ruled in one such case that if someone is a convicted murderer, they have been “judicially declared to be evil” and cannot be further damaged by aspersions upon their character (Hudson 15).  The libel-proof doctrine was further invoked in the same jurisdiction in order to negate the claims of the convicted assassin of Martin Luther King Jr., James Earl Ray, when he sought redress from the court for being portrayed in Time magazine as a thief and a drug dealer (Hudson 16).

Beyond Tennessee, Penthouse publisher Bob Guccione objected to being labeled as an adulterer even though he was openly a pornagrapher, but lost his case due to the libel-proof doctrine (Hudson 16), as did former MLB player Lenny Dykstra when he sued a publisher for portraying him as a racist in a ghost-written memoir by a former teammate (Dykstra 4, 18-19).

In Dykstra’s case, it was not his profession that reflected badly on his reputation, but his history of personal behavior.  Evidence was produced to show that he had long been considered “unsportsmanlike”, “shitty”, a “criminal”, a thief, a drug abuser, “racist”, “hateful”, an extortionist, “violent”, “abusive”, misogynistic, a “homophobe”, treacherous, a “sexual predator” and “one of baseball’s all-time thugs” (Dykstra 2-4, 6).

In finding against Dykstra’s claim, the defense invoked a couple of other points of libel law.  Firstly, the statements in question were “substantially true”.  In addition, the defense argued that the plaintiff cannot claim incremental harm because Dykstra’s reputation would likely be unchanged even if the allegations in the published book were demonstrated to be false.

If one considers the elements of a finding of libel, in the Dykstra case, the plaintiff lost because he was not able to prove that the statements about him were false, that his reputation was capable of being damaged and that he suffered actual harm (Dykstra 5).

 

Works Cited

Dykstra, Lenny vs. St. Martin’s Press LLC. 153676-2019. 2020. Print.

Hudson Jr., David L. “Shady Character.” Tennessee Bar Journal, vol. 52, no. 7, July 2016, pp. 14–17. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=116345329&site=ehost-live&scope=site. Accessed 5 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Historic Preservation Weekend in Sullivan, MO

Architecture, Conservation, Events, Gardening, Historic Sites, Outdoor Fun, Route 66, , , , , , , , , , , , , , , , , , , , , , , , , , , ,
removing invasive euonymus and honeysuckle
Tom and I are pictured removing invasive honeysuckle and euonymus from the Shamrock Courts in Sullivan, MO. In the center all the volunteers are having a lunch break.

On November 7 and 8th, 2020, members of the Route 66 Association of Missouri and other volunteers worked on a historic preservation project at the Shamrock Courts in Sullivan, MO. The Shamrock Courts were an historic Route 66 motel that was later converted to apartments and then left empty for over a decade. The goals of the volunteers on this cleanup weekend were to preserve the buildings, get the property cleaned up and looking good to help it find a good buyer who will restore it, and to look for artifacts and history to pass on to the new owners and to the historic record of Route 66.

I was only able to go on Sunday the 8th because I had a lot of homework, but was nevertheless very pleased to make my contribution. My husband Tom joined me. I concentrated on removing invasive vegetation from the building and the surrounding property. Removing the invasive vegetation helps with preservation because it prevents fast growing trees and vines from gradually prying apart bits of the buildings.  In addition taking seeds and parts of the plants that can grow away from the property helps to prevent regrowth and the cost of future labor to remove it. I may be back because there is a lot more to do!

Artifacts that thrill Route 66 fans
Artifacts that thrill Route 66 fans

When you can find actual historic details and artifacts, it’s an extra reward. For Route 66 fans, to see the outside of buildings like this is exciting, but it’s even better when you can get permission to get close and even go inside to discover things that you may not ever see during a “drive-by” photo op visit, or in a book. Historic finds, like the neon sign tubing we are holding up in the center photo, add to the historic value of the property as well as the satisfaction for history-loving owners and volunteers.

Personally, the day I spent at the Shamrock was extra special because it was on the 21st anniversary weekend of attending my first Route 66 Association of Missouri meeting and the first weekend of exploring Route 66 in Missouri with my Mom and Dad. We stayed at the Boots Motel and stopped for classic roadside sights for the first time such as Red Oak II and Bill’s Station. The following year I became a lifetime member of the Route 66 Association of Missouri!

Experience some of the thrill of discovery with these videos by Roamin’ Rich Dinkela, President of the Route 66 Association of Missouri!

Day 2 of saving the Shamrock

Finding the neon sign tubing!

The Holiday Inn Brand and Trademark Concepts

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The following is an assignment for my class MEDC 5350: Media Organization Regulations at Webster University.   This one has some pictures in it, so I thought it might be a nice change from the walls of text I’ve been publishing lately!  The only thing I changed since turning it in is rewording some references to graphics because it’s formatted slightly differently.  It’s also available as a Word document here:
“The Holiday Inn Brand and Trademark Concepts” Word Document.

The Holiday Inn Brand and Trademark Concepts

The Holiday Inn brand is a fertile source of imagery for examining legal issues concerning trademark tacking and trademark infringement. The book “American Signs: Form and Meaning on Route 66” by Lisa Mahar examines the motel signage along the historic highway US Route 66 from 1938 to the 1970s in order to explain the economies and cultures behind the forms and themes of motel advertising signs of the time period (Mahar 10). The Holiday Inn lodging chain was founded during this era and the imagery associated with the Holiday Inn brand was influenced by and in turn influenced trends in the motel industry throughout the whole country (Mahar 122, 127).

Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Excerpt from page 134.
Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Excerpt from page 134.

The diagram above (Mahar 134), demonstrates minor differences in the Holiday Inn logo and signage from 1952-1957. The use of a star and a certain script lettering style is consistent even though the arrangement and number of elements is slightly different.

The following examples show how Holiday Inn added and subtracted elements and slogans to go along with its earlier trademarked elements. The Holiday Inn logo, both one-line and two-line, are registered. The Holiday Inn sign is registered with the US Patent Office, as is the colonial mascot figure that showed up on some advertising pieces and then was later dropped again. The slogans “The Nation’s Inkeeper”, “The World’s Inkeeper” and “Your Host from Coast to Coast” were all registered. The brand’s use of the colors green, yellow and white are consistent in these samples, mostly from the 1970s.

Various Holiday Inn trademarks, mostly from the 1970s.
Various Holiday Inn trademarks, mostly from the 1970s.

Holiday Inn marks demonstrate how “words, designs, colors and other devices” were used to distinguish its services from other lodgers from the 1950s through the 1970s (Trager 523). Trademark tacking is the practice of making changes to a trademark without relinquishing the old marks (Trager 519). The Holiday Inn samples shown above illustrate trademark tacking as the color scheme and script font were used over a long period of time, with other elements such as the stars and colonial mascot added and subtracted.
Following are some examples of motel signs from the classic Route 66 era that are similar to the Holiday Inn sign, to varying degrees. By looking at the dates and contexts of these signs, it seems apparent that the first Holiday Inn sign from 1952 incorporated some elements in signage that were already in use, but as the chain in turn became popular other signs for independent motels were more directly influenced by the Holiday Inn chain (Mahar 126-127).

sign_influence

Did the independent motels with signage similar to Holiday Inn engage in trademark infringement? The use of stars, the sign elements and shapes, the name “Holiday” and the color green were all used in various ways as a result of Holiday Inn’s influence (Mahar 127).

Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Diagram from page 127.
Credit: “American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002. Diagram from page 127.

The law uses the likelihood of consumers becoming confused as one of the criteria to determine whether or not there is infringement (Trager 518). It is not enough for the marks just to be similar (Trager 519). The combination of sign elements with Holiday Inn’s colors and name recognition seems to be distinctive enough to avoid confusion with other brands who might have used a subset of the elements used by Holiday Inn but not all of them combined together.

Works Cited

Advertisement for Holiday Inn. Inkeeker’s Supply Company, Memphis, TN. Circa 1970s. Author’s personal collection.
—. Stationery sheet. Holiday Press, Circa 1970s. Author’s personal collection.
—. Business reply letterhead. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.
—. Rate sheet. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.
—. IMART, Memphis, TN. Circa 1970s. Author’s personal collection.
—. Back of business reply envelope. Holiday Inn Lake of Ozarks, Lake Ozark, MO. Circa 1970s. Author’s personal collection.

“American Signs: Form and Meaning on Route 66” by Lisa Mahar, 2002.
“Motel Sign to Get Face Lift.” Between Friends, Vol 2, Issue 2, Fall 2003, pp. 1.

Rest Haven Court. DePew Advertising, Reeds Spring, MO. Postcard. Author’s personal
collection.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass
communication. Sixth Edition. SAGE Publications, Inc. 2018.

Winkelmann, Carolyn Hasenfratz. Photograph of Munger Moss Motel. 2006. Author’s personal collection.
—. Photograph of the Gardenway Motel. April 2000. Author’s personal collection.
—. Photograph of Vernelle’s Motel. April 2000, Author’s personal collection.

Freedom of Expression in The Age Of Powerful Technology Corporations

Reviews and Commentary, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

The following paper was turned in last night for my Media Organization Regulations class at Webster University. It is not graded yet. Enjoy!

Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
1 November 2020

Freedom of Expression in The Age Of Powerful Technology Corporations

Freedom of expression is the right to disagree, to assemble in protest of laws and to publish and disseminate opinions, ideas and beliefs (Baran and Davis, 64-65).  Freedom of expression is considered central to democratic self-government and is therefore described, though not in those exact words (“Bill of Rights…”), in the Bill of Rights (Baran and Davis, 64-65).  In 1927, the Supreme Court found against the plaintiff in the case Whitney v. California, a ruling that was overturned in 1969 (Belpedio).  This case was heard to decide whether or not the arrest and conviction of a Communist political activist in 1919 was in violation of the 14th Amendment of the U.S. Constitution (Legal Information Institute).  Part of the written opinion of Justice Louis Brandeis caused some to question why he voted against the plaintiff in Whitney v. California since his defense of freedom of expression was eloquent and widely influential (Belpedio).  Justice Brandeis’ words have been interpreted as a “virtual declaration of absolute free speech” (Belpedio).

A present-day issue that Justice Brandeis illuminated in his prescient comments from 1927 is the regulation of speech by corporations that are popularly known as “Big Tech” (“Does Section 230’s…”). On October 28, 2020, the United States Senate Committee on Commerce, Science, and Transportation held a hearing on current internet law and whether or not it is sufficient in the present day to ensure the free exchange of ideas in the online environment controlled by Google, Twitter and Facebook (“Does Section 230’s…”).

A study by the Pew Research Center found that as of 2018, social media had surpassed print newspapers as a source of news, accounting for 20% of the news audience (Shearer).  The study also reports that 33% of adults in the U.S. consume news content from online web sites (Shearer).  Since Google is the largest provider of internet search results, with a nearly 88% market share in the United States (StatCounter), having influence over potentially nearly 43% of all news content puts these three big tech companies in powerful positions.  In a 2016 TED talk, referring to the platforms Twitter, Facebook and YouTube, internet freedom activist Rebecca MacKinnon stated “… we do know that journalism, activism and public debate are being silenced in the effort to stamp out extremist speech.  So with these companies having so much power over the public discourse, they need to be held accountable” (MacKinnon). YouTube is owned by Google LLC (YouTube).

Concerns about the freedom of expression in search results and within social media platforms in the face of this power have been growing in recent history.  On its web page “Digital Bill of Rights”, the stance of Adbusters, a nonprofit network of artists and activists declare that “It is high time that digital citizens, in the face of rampant techno-tyranny, openly mount a resistance to take back our mental space by force” (Adbusters “Digital Bill of Rights”).  73% of U.S. adults now suspect that social media companies intentionally block political content that they don’t want users to see (Vogels et al).

The Big Tech companies that the Senate investigated on October 28, 2020 are not legally required to allow their users rights as described in the First Amendment, which restrains government action only (Rosen).  The law that the recent Senate hearing choose to focus on is Section 230 of Communications Decency Act (DCA) of 1996 (“Does Section 230’s…”).  Section 230 does not address whether or not the platforms can legally restrict political opinions – it addresses immunity from lawsuits on other matters such as libel, because the platforms claim they do not influence content (Trager 210).  It appears that it could be argued Section 230 immunity should not be applied to Facebook, Google and Twitter because they do “interact directly with content” in an attempt to cultivate attitudes to make the culture of the United States more like Europe (Rosen, Trager 210).  In Europe, safety and propriety are valued more than freedom (Rosen) while the culture of the United States accepts more risks.  In the words of Justice Brandeis, “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.  They valued liberty both as an end and as a means.  They believed liberty to be the secret of happiness and courage to be the secret of liberty” (Baran and Davis 65).

Users who are attracted by the promise of free speech have been turning to alternative platforms that are perceived to be less restrictive than the three tech companies that the Senate Hearing examined.  Parler appeals to unhappy Twitter users by claiming to offer an environment with more freedom and corporate accountability (Parler).  Articles suggesting alternatives to Google and Facebook describe platforms that users concerned about data mining and privacy issues can try out (Broida, Taylor).

The movie industry’s voluntary Hays Code, which was in effect from 1934-1965 was intended to reduce public outrage and stave off possible future government regulation of motion picture content (Hays Code).  The power of the medium of television and its effect on violence in children led to the threat of possible increased government regulation and in turn self-regulation by the industry in the late 1960s and early 1970s (Baran and Davis 166-167).  The Big Tech companies might choose in the future to follow the lead of the movie and television industries that proceeded them and do more self-policing in order to better align their European-inspired standards to the expectations of the American public.

Works Cited

Adbusters. “Digital Bill of Rights”. 1989-2020, www.adbusters.org/articles-coded/digital-bill-of-rights, Accessed 1 November 2020.

—. “Mind Journey #11”. 1989-2020, featured.adbusters.org/mindjourney/011/, Accessed 1 November 2020.

—. “‘The Social Dilemma’ director hopes to spark a movement” 1989-2020, www.adbusters.org/the-pulse/the-social-dilemma-director-hopes-to-spark-a-movement, Accessed 1 November 2020.

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

Belpedio, James. “Whitney v. California (1927)”. The First Amendment Encyclopedia, 2009, mtsu.edu/first-amendment/article/263/whitney-v-california, Accessed 1 November 2020.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

Broida, Rick. “Social-media alternatives to Facebook.” CNET, 2018, www.cnet.com/how-to/social-media-alternatives-to-facebook/. Accessed 1 November 2020.

“Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?”. U.S. Senate Committee on Commerce, Science & Transportation, 2020, www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-immunity-enable-big-tech-bad-behavior, Accessed 1 November 2020.

Greenwald, Glenn. “Article on Joe and Hunter Biden Censored By The Intercept”. Glenn Greenwald, 2020, greenwald.substack.com/p/article-on-joe-and-hunter-biden-censored, Accessed 1 November 2020.

“Hays code.” Siteseen Limited, 2017-2018, www.american-historama.org/1929-1945-depression-ww2-era/hays-code.htm. Accessed 14 September 2019.

Legal Information Institute. “WHITNEY v. PEOPLE OF STATE OF CALIFORNIA”. Cornell Law School, 2020, www.law.cornell.edu/supremecourt/text/274/357, Accessed 1 November 2020.

MacKinnon, Rebecca. “We can fight terror without sacrificing our rights.” TED Conferences, LLC., June 2016, www.ted.com/talks/rebecca_mackinnon_we_can_fight_terror_without_sacrificing_our_rights/transcript. Accessed 1 November 2020.

“Parler”. Parler, Inc., 2020, www.parler.com/auth/access. Accessed 1 November 2020.

Rosen, Jeffrey. “The Deciders: The Future of Free Speech in a Digital World”. Harvard Kennedy School Shorestien Center on Media, Politics and Public Policy. 2016, shorensteincenter.org/jeffrey-rosen-future-of-free-speech-in-a-digital-world/, Accessed 1 November 2020.

Shearer, Elisa. “Social media outpaces print newspapers in the U.S. as a news source”. Pew Research Center, 2018, www.pewresearch.org/fact-tank/2018/12/10/social-media-outpaces-print-newspapers-in-the-u-s-as-a-news-source/, Accessed 1 November 2020.

StatCounter. “Search Engine Market Share in United States Of America Sept 2019 – Sept 2020”. October 2020, gs.statcounter.com/search-engine-market-share/all/united-states-of-america, Accessed 1 November 2020.

Taylor, Sven. “Alternatives to Google Products”. Restore Privacy, LLC, 2019, restoreprivacy.com/google-alternatives/. Accessed 1 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Vogels, Emily A., Andrew Perrin and Monica Anderson. “Most Americans Think Social Media Sites Censor Political Viewpoints”. Pew Research Center, 2020, www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/, Accessed 1 November 2020.

YouTube, 2020, www.youtube.com/. Accessed 1 November 2020.

 

If you want to delve deeper into this and related topics, I have links to a lot more resources on a Pinterest Board: Media Analysis: Communications and the Law