Been getting many offlist queries about this new French company named
Fluxus. Been working and writing the last few days. Hadn't noticed anything
until letters came from some friends on the list.
Was asked about protection of the name Fluxus and legal situation. Also
queries comparing to etoy case and Leonardo case.
This involves four or five different sets of legal issues. My understanding
on the several matters is this.
(1) Copyright
Copyright protection can't cover a name or a title, only contents in
specific form. While the contents of the Fluxus publications were initially
protected by copyright, this protection never extended to the titles of the
works or to the name "Fluxus" itself.
(2) Trademark
A name can be covered by trademark protection. To my knowledge, no
trademark was every registered for the name Fluxus.
(3) Common law protections
The name Fluxus used by artists affiliated with or interested in the use of
the name Fluxus is probably protected under common law by virtue of
established usage. This cannot be forbidden to them.
(4) Freedom to use a name not trademarked
At the same time, it is probably impossible to forbid others to use the
same name.
At this time, the French Internet people are neither the only - nor the
first - to use the name Fluxus. In my introduction to The Fluxus Reader, I
noted, among others, an advertising agency, a design firm and three or four
more. There are record companies, bookstores, restaurants, bars Š all using
the name Fluxus. You name it and one or two of it are using the name Fluxus.
(5) Legal challenge
To challenge this or any of this would be terribly expensive. Whoever
wishes to do so would be obliged to hire a law firm. God save us! And pay
them. God save us! And go to court. God save us all!
(6) Fluxus compared to Leonardo and etoy
The cases surrounding Leonardo and etoy didn't involve the right to use the
name in normal common usage, but questions surrounding the right to
continue to use the name on the Web or to restrict the use of the name on
the Web.
The issues here are tricky. They are different than the other issues noted
above. They involve yet undefined areas of cyberlaw. Lawyers will
eventually sort it out at great cost to all concerned.
If one of the several firms using the name Fluxus on the Web tried to
prohibit us - and remember, several came BEFORE these new guys - then there
might be a case.
(7) What is to be done . . .
A few people asked me what, if anything, I thought we ought to do. Gads.
Who can tell? In a perfect world, I'd probably have an answer. In a perfect
world, maybe it wouldn't be a problem.
-- Ken Friedman
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