Are objects such as Rubiks Cube and Smiley faces really forbidden for use?

Question

I am a designer and a part time web developer. I recently designed a web UI for a pet project of mine and before going public consulted my legal advisor. To my surprise, my advisor recommended that I totally drop my idea as it would get me into trouble.

My design:

1. A website whose banner would have my workstation desk as an image (think of it as a stock image)
2. Somewhere on my desk I have a Rubik's cube with my initials on it, and a sticker on the wall with a Smiley face ( :) )
3. As the user scrolls through the page, a Rubik's cube at the bottom right will spin, and arrange in a manner which shows my initials on the cube once the user reaches the end of the page

My advisor's feedback:

1. The workstation has the name of the manufacturer which is problematic
2. Using Rubik's cube (a rotating 3x3x3 cube of any color scheme) for any purpose is problematic
3. Smiley faces and other emoticons are not to be used
4. The screen on my workstation shows a popular software which could also lead to trouble

This just scraps my entire idea.

Per my understanding, "creative expression" of everyday objects can be copyrighted, and should not result in an infringement, right? I am not a legal expert, so kindly pardon my naivety, but I thought objects like desks, chairs, computers, some sticker on a wall and some nerdy puzzles, or a "creative expression" involving a combination of these cannot count as infringement of rights owned by their manufacturers, right? It's not like I am advertising their products as mine, nor am I seeking to snatch away their rights by attempting to copyright a picture of them. I also don't think I would cause any brand damage by just using a picture. I mean, think of all the gaming desktop builds over the internet and how many images they post

So what's the problem?

I am just not sure of what can be used anymore, for non-profit or commercial purposes. I can no longer use the equipment I have to click an image of them, and use it to brand my work (as a copyright/logo etc.)? How is this possible? Should I now build my own equipment from stone and wood? Should I also write my own software? Is there anything in the world that CAN be used as a logo/copyrighted property?

Thanks for being patient, and thanks for any opinions.

PS: I am not seeking legal opinion, I already did that. I am only trying to refine my understanding of the way the legal world works.

Answer 1

I cannot be sure why your advisor has given the advice that s/he did. Note that when an IP lawyer says that something is "problematic", the lawyer may mean not "That would clearly be an infringement" but rather something more like:

We might win a suit over that, but a plaintiff would have a reasonable case so we could lose, and even if we won it wouldn't be dismissed at once, and the costs and tiem required to mount a defense would likely be prohibitive.

A Lawyer advising a client must take risks and probable costs into account, as well as what is and is not clearly required by the law. That said, I am not a lawyer advising a client, so I can address the more theoretical legal aspects here, and ignore the risks and cost to a degree.

The workstation has the name of the manufacturer which is problematic

Names cannot be copyrighted, but can be and often are protected by trademark law. But showing a products or manufacturer's name on an image of a product is pretty much never trade mark infringement if one is not advertising that or a similar product, or in some way conveying the idea that the product begin sold is from, or endorsed or sponsored by the manufacturer. In any case, surely the image of the workstation could be edited to remove the name, or change it to a fictional name?

Using Rubik's cube (a rotating 3x3x3 cube of any color scheme) for any purpose is problematic

The idea of a rotating 3x3x3 array of cubes is an idea, and as such is not at all subject to copyright. There was a patent on the particular mechanism Rubic used to implement this idea, but that has long since expired, and would not be on display in any case. An image of a particular version of the cube (and its name) might be protected as a trademark, but I do not see how this could cover the general use of any such array.

Smiley faces and other emoticons are not to be used

This is, in my view, far too broad a statement. The WIPO Magazine article "Emojis and intellectual property law" published by the World Intellectual property organization, states:

... most individual emojis will not receive copyright protection for at least three reasons.

First, some emojis are so simple that they do not have enough expression to constitute a work of authorship. Also, some emoji designs are so venerable that they are not original.

Second, emojis are subject to the merger doctrine, which eliminates copyright protection when an idea can be expressed only in a limited number of ways, and scènes à faire, which eliminates copyright protection for details that, in context, are common or expected. ...

Third, though Unicode’s IP policy is not crystal clear, Unicode likely either disclaims ownership or freely grants unrestricted usage of its emoji definitions. Platform-specific implementations of Unicode-defined emojis are based on the Unicode outlines, so most implementations should be derivative works of Unicode’s definitions.

...

Even if an individual emoji qualifies for copyright protection, its scope of protection may be quite narrow. For example, many courts in the United States will apply the fair use defense broadly to authorize non-identical emoji implementations, and even identical depictions could qualify as fair use.

I think that the classic smiley face would almost surely not be protected under the merger doctrine. The rules for emoticons in general might differ.

The screen on my workstation shows a popular software which could also lead to trouble

This might have soem value. Showing screen shots is generally fair use when used for comment or instruction. But the appearance of a particular software package can be covered by copyright, and use of it for commercial purposes that are not comment on the application might not come under fair use. This would depend very much on the details of the program and exactly what is shown. But a designer ought to be able to chose the display to be shown so that it was not likely to be infringement, or to obtain permission for the software maker.

You could ask your advisor to go into more detail as to why s/he made these recommendations. That might require an additional fee, and perhaps would not be worth it.

It is worth remembering that what is and is not allowable in an IP context is often not clear cut, and a possible lawsuit involves significant risk and expense, even when an academic lawyer would say there is little chance of an adverse verdict, and even if that judgement proves correct in the end.