In a previous post I mentioned that I was dabbling in marketing on Zazzle–offering products adorned with images that are either created by myself or are in the public domain. I have a fondness for clean, iconic images. And the video transmission color-bar test pattern is just exactly that. Back in my early days I worked in television graphics and was often in the studio when the feeds went out to member stations prefaced by the color bars and a countdown which was often adorned with whatever amused the local station that day.
I also remembered an old TV joke about those color bars which were often called the NTSC color bars for the National Television System Committee [a federally-created watchdog organization under the Federal Communications Committee]:
NTSC = Never Twice Same Color.
Thinking that both the image and the joke would appeal to aging tecchies like myself, I promptly designed a line of products, the mug with the black inside being my favorite.
I posted the items, being sure to include lots of historical information in the description and tags to get them found and to interest potential buyers.
Partially because I was concerned about how the RGB color bars would translate to the CMYK reproduction process and partly because I wanted one, I ordered a mug for myself.
I was flabbergasted when I found out my order had been cancelled by Zazzle due to “copyright infringement.”
Thank you for your recent order: 131-33908243-4361760.
Unfortunately, we are unable to process your order due to a conflict with one or more of our acceptable content guidelines. As a result, the following item(s) cannot be produced:
Title: NTSC colors mug
Product Link: 168118597452063660
Result: Not Approved
Content Notes: — Design contains an image or text that may be subject to copyright.
And that was not all. A followup Zazzle billet-doux let me know there had been a copyright complaint but not from whom.
Thank you for your interest in Zazzle.com, and thank you for publishing products on Zazzle. Unfortunately, it appears that your product, NTSC colors mug, contains content that is in conflict with one or more of our acceptable content guidelines.
We will be removing this product from the Zazzle Marketplace shortly. Please help us make our content approval process better by taking this short survey.
The details of the product being removed are listed below:
Product Title: NTSC colors mug
Product Type: zazzle_mug
Product ID: 168118597452063660
Result: Not Approved
Policy Notes: Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims.
I couldn’t believe it so I checked it out with a very reasonably priced [$30 bucks a question] online legal service called JustAnswer. A lawyer who styled himself “socrateaser” promptly replied to my questions:
who could possibly hold a copyright on NTSC color bars?
Or the old joke: “Never Twice Same Color”?
IF I WANT TO USE IT WHOM DO I ASK FOR PERMISSION?
His answer was very informative:
The color bars are not copyright NTSC. The National Television System Committee was a federally-created organization authorized by the Federal Communications Committee, and as such any works would be public domain from the moment of their creation, per 17 U.S.C. 105.
However, the color bars are not the creative work of the NTSC. So, the fact that the NTSC was a federal agency is irrelevant.
The author of the original color bars is Al Goldberg, who was employed by CBS Laboratories. So, if anyone is the copyright owner, that would be CBS.
The Society of Motion Picture and Television Engineers (SMPTE) is the author of several revised color bar schemata, and since it is a private organization, then that would be another possible copyright that you would be violating (dependent upon your chosen set of color bars).
I doubt that either CBS or SMPTE maintains an active copyright on the color bars, because the bars are routinely used everywhere in the video industry and no one ever pays mandatory fees to SMPTE for its creation. Thus, a court would almost certainly deem that the bars have been abandoned into the public domain, because there has never been any effort to control their use by third parties.
You could contact SMPTE and ask for a license. But, you’ll have to pick a set of color bars that you know are SMPTE’s creation — otherwise, you’ll be wasting your time.
So I contacted SMPTE.
I am requesting permission to use the color bars along with the old television joke “NTSC = Never Twice Same Color.” I designed a mug with this image to sell on Zazzle. I hoped to market to older techhies and engineers who had worked in television about when I did. Perhaps even members of your group.
When I made the NTSC mug, I first ordered one for myself, both to check how the RGB color translated to the narrower gamut CMYK before offering it for sale and because I wanted one.
I had no idea that there could be copyright issues with the NTSC color bars and was totally buffaloed when Zazzle wrote back that I could not do this due to copyright restrictions. The color bars were an industry tool, I thought. Not something like the CBS eye or NBC peacock. How can a visual signal for calibration that is used everywhere be copyrighted? I protested to Zazzle to no avail then sought legal advice. [legal opinion and correspondence with Zazzle both follow my signature]
Please, If you decide that you cannot grant me permission to market this image I request that at least you would grant me specific permission to make one for myself, to remember my days in television with a smile.
And received this reply:
Thanks for the information. SMPTE does actually hold the copyrights to the color bar test patterns: EG 1-1990 (formerly known as ECR 1-1978) as well as RP 219-2002. The confusion with CBS is that they were part of the SMPTE standards group that developed the Engineering Guidelines. We protect the copyright by enforcing unlicensed use. They must be used with SMPTE permission and contain copyright notice in merchandising applications, including derivative works. The issue that I see with licensing your design, is that they are not billed as SMPTE, rather NTSC. Also as they were designed to calibrate proper color, the joke implies that they do not do their job. For those reasons, I am having trouble seeing how SMPTE can endorse the design with licensing. However, please correct me, if I am misunderstanding.
Well, that cleared ol’ CBS out of the picture. Still I tried to get SMPTE to be more sympathetic to my cause and offered the following resolution that included both a copyright notice and a disclaimer in this email reply:
The joke was real as NTSC could not control the variations in equipment each station had that caused the color variations.
I could put small a line of type below that says something like:
The fault was not with the SMPTE© color bars© but with the variation in transmission equipment.
That might make it even more interesting to a techhie.
In order to protect our copyright, permission must be granted through a licensing agreement.
how do you do that? Do you draw one up? Does the disclaimer I wrote cover the issues of copyright notice as per your email?
No, it is a legal contract and royalties are required.
can they be very small-like 10% of what I would make on each sale?
[note: small indeed--I make about 2 bucks, they'd get 20 cents.]
Their final Word:
We would prefer not be associated with this particular project.
Like I said, SMPTE has no sense of humor.