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The Itsy-Bitsy, Teenie-Weenie, Very Litigious Bikini (nytimes.com)
225 points by danso on Dec 20, 2018 | hide | past | favorite | 111 comments

This is more common than you might think. A company once sent me a demand that I stop distributing my game Empire as I'd copied it from them.

Turns out I had a registered copyright for it that preceded their company by about 10 years.

Some people are just shameless.

Did you counter-demand that they stop distributing their game? Seems like it would have only been fair.

Wait...Empire was published in 1987. Age of Empires was published in 1997. Are you talking about Microsoft?

Empire was created in the late 1970's.

The details of the case are long settled, so I prefer not to rake the coals.

For the benefit of others who could learn from this experience, rake the coals.

I'm also interested, if there isn't any repercussions why not share?

Kudos to you... It seems you created an amazing game, and possibly you didn't get all the credit you deserve for it. I might be mistaken, but if I am not... Thanks!

MicroProse? Founded early 80s, creators of Civ

Please do. It would certainly inform folks what to expect.

Empire is an amazing game! I grew up playing it with my dad. So many good memories, and I think it stands the test of time; I still play sometimes. Never thought I'd run into its author on HN!

> its author on HN!

I never could keep my yap shut :-)

It's a good thing the intertoobs don't keep a permanent record of every dumb thing I post.

Edit: oh crap

Holy shit I played the crap out of empire in highschool with a friend on IBM PCs, mid 1990's. So many good memories.

Cool! Anywhere I could look for details about your game?

Edit: Never mind, I took a look at your username and googled it with "empire". (google even did an auto complete to it!) for other's, here it is, looks great! http://www.classicempire.com/

Has anyone contacted you about licensing for a mobile port? Seems like it would be a good match for a more casual pseudo rts (in terms of no tech trees or damage stats) where you could have multiple games going at once as you wait for responses.

The rejection letters are good. They vary from the dismissive to the "do show us your other games" or "yes it is really addictive, but we won't sell it"

I liked, "In spite of your warning, several members of our staff became addicted to it."

Could you expand on this registered copyright thing? Which country? I'm aware of registered trademarks, but I've never heard of registered copyright - only the kind that automatically exists as soon as you create a work.

In the US, you can officially register your copyright by filling out a form, paying a small fee, and supplying a copy for archiving in the Library of Congress. It makes defense of your copyright much easier.

In addition to what everyone else said, registering your copyright in the US gives you the option of recovering statutory damages instead of actual damages from an infringer, which is real useful if, say, the work is FOSS and you'll have trouble demonstrating you lost more than $0 profit because of the infringement. https://en.wikipedia.org/wiki/Statutory_damages_for_copyrigh...

This should help:


A registered copyright gives you additional legal protections, as well as solid proof of ownership.

You can register copyrights in the US: https://www.copyright.gov/registration/

It’s not required in order to have a copyright, but it can make it easier to prove a claim.

Totally off-topic now, but what was the lineage of the trademark for that that allowed New World to publish the seemingly unrelated tactical game Empire II? I impulse-bought that when I found it in a bargain bin and while it was fun enough for the small amount I paid, it was nothing at all what I was expecting from the name...

Turns out that the name "Empire" is not trademark-able. It's too generic, and/or I don't have Apple's lawyers to force the issue :-)

Wow! We had empire for our Amiga 500 when I was like... 6. It always impressed / intimidated me. Bravo!

Very disappointing. Irgit shouldn't have won a single suit: fashion design is not copyrightable. Courts overreached here, especially as Irgit purchased this design and did not make it herself.

The bikini style is probably unique enough that it could be considered "trade dress", which is protected by IP law: https://en.wikipedia.org/wiki/Trade_dress

The article mentions trade dress being an aspect of their lawsuit against Neiman Marcus and some other companies.

Trade dress was the basis for (one of the?) Apple/Samsung disputes, with Apple making the argument that the distinctive shape of the early iPhone should not be copied: https://revisionlegal.com/trademarks/lessons-trademarking-tr...

Ah yes, the distinctive, never seen before, rounded corner rectangle. A marvel of ingenuity, creativity, and geometric composition.

Intellectual property isn't always about something never seen before, ever, in any application, but about something never seen before in that application. Wipers were famously pateted twice, for ships and for cars. I could see an argument that applying the rounded corner rectange to smartphones is novel so it deserves protection.

> Wipers were famously pateted twice, for ships and for cars

And this doesn't strike you as ridiculous?

I understand we want to protect the little man inventor from staying poor as big companies get rich off of their ideas, but something like wipers being a patented concept on each different vehicle is not a function of this need.

No, we want to encourage people to take good solutions from a domain and to do the work to validate they're good for other domains too. That's non trivial work that needs to be rewarded for it to occur at scale.

BTW, the current state of the art in ship windshield wiping does not look like a car wiper at all.


The only thing is that trade dress is being used as a proxy for copyright, and trade dress isn't supposed to protect things that are considered functional. I would say having smoothed corners on a device I use with my hands and hold near my face is very functional.

That still seems like a reach to me. IANAE, but it's hard to imagine someone calling a neon green polyester suit "trade dress".

There's plenty of precedent. For example, red soled high-heel shoes:


Hyacinthe Rigaud's famous 1701 painting of Louis XIV clearly shows Quatorze wearing red, high-healed shoes. Why doesn't that bounder, Christian Louboutin, go and sue the sun king's ghost? Or is that not how prior art works?

The intent of the red sole infringer was to make people think they were Louboutin. It wasn’t red soles for red soles’ sake: it was to intentionally dilute (or piggy-back upon) the Louboutin Design. Just like someone calling a restaurant MacDonalds instead of McDonald’s.

Louboutin's application specifies high-heeled shoes with red soles, ie. the colour of the rest of the shoe is irrelevant. The painting shows high-heeled shoes where the irrelevant part is reddish and the relevant part isn't shown. IANAL and not sure whether it could be relevant if&when, but as it stands it's plainly irrelevant.


Wow, what an overreach. I'm surprised they won.

I hope this EU ruling is not applied in the US.

is it really such an overreach when the detail is so strongly associated with their brand that Louboutin shoes are often informally called "red bottoms"?

yes, its an overreach that they should be able to demand and expect the state to protect their inane detail as though that has any value to society or the economy.

a system optimized for rent seeking on the color red is overreaching.

“Red Bottoms” was in the chorus of a song that was a #1 for three weeks in 2017 (Bodak Yellow by Cardi B). Since you seem to be unaware of this “inane” detail that is a big part of current American culture, perhaps you should lay off on passing judgement.

I don't see the comment as judgement passing. Instead, it is a rather important economic observation. A tiny bit of red on a piece of apparel shouldn't be intellectual property, be it a part of American culture or not (I wouldn't dare on speculating how big a part of the culture it is). Rent seeking behaviour on this patch of red is not beneficial to the human race in any readily apparent way and is detrimental due to it being yet another precedent for the ever-growing, soul-sucking, innovation-stifling scope creep of IP.

The popularity of it doesn’t affect whether it is or is not inane and whether it is or is not morally right to protect with state power.

Well reasoned; and perhaps we should mobilize the U.S. Army to protect the concepts and themes central to the next Lil' Wayne single.

Thankfully, Friend Computer just promoted me to Red Clearance so I'm allowed to have those shoes.

Should the Nike Swoosh be protected?

In this case it seems that the courts are ruling in favor of what the legislators didn't want to happen. Fashion is intentionally not subject to copyright.

Trade dress is for identification (like a logo), not for the overeall aesthetic of the product.

Read the wikipedia page, it covers more than that.

Whatever the definition of trade dress, don't you think it matters that it's likely to be stolen? I'd think that would be the first constraint.

There's a fine line between protecting original works and creating barriers to competition through litigation. Not sure just using a different material and stitching method (that has been widely used for ages) qualifies for protection. It's too general. Now if someone is trying to pass off as the same brand name that is something entirely different but that's trademark not copyright.

What a fascinating read. Especially Ferrarini‘a comment at the end. I hope she get a lot more royalties than what the article is saying.

Not to diminish the sentiment (I agree, she should get a lot more) but the amount she's receiving now might exceed anything she's ever earned before in Brazil walking the beaches, so it's not a sad story yet, I think.

From worldcrunch: "According to the Brazilian daily Estadao, a worker on the bottom end of Brazil’s pay scale earns roughly $77.40 per month, meaning it would take him or her three years and three months to earn what an average person at the top end of the spectrum makes in just one month: $3,019."

That's still borderline theft. She got robbed before and now other robbers gave her a pittance.

Does anyone know more about the etymology of the closing quote “I want her to get screwed in green and yellow”?

I assume this has something to do with those being the colors of the Brazilian flag, but when I googled all I found was this figurative translation: https://www.kwintessential.co.uk/blog/learn-a-language/idiom...

It's a Brazilian idiom, somewhat equivalent to saying "royally" or "spectacularly". Green and yellow are indeed a reference to the Brazilian flag. The idea being that someone wearing these colors would probably be some official person in a very visible position, like a player of the national football team.

Doesn't the national team usually wear primarily yellow and blue? I know there's some green in there but...

Yes, but the color pair most commonly used for the reference to the Brazilian colours is Green and Yellow

Brazilians have terms that make no sense at all even in our own language. Things like greeting someone with “beleza?”(Beauty?) and the other end replying with “Jóia” (jewel). Other things include “pretending to be armless John” and “pull your small horse out of the rain”.

Most of them have some obscure meaning that is unknown to most people nowadays.

It's a good thing the English language is a different kettle of fish that doesn't hornswoggle us blithering idiots while we chew the fat and things go pear-shaped.

Almost every language has this. Its called idioms, and I am fascinated by them. Some examples in English: "wet your whistle", "cost you an arm and a leg", "basket case", "bite the bullet", "for a song".

"cost you an arm and a leg" and "for a song" don't seem like the others. Those two makes metaphorical sense without being idioms (even though they are idioms). You could translate them to any language, dialect, etc. and the meaning is still clear. Not so with your other examples.

"wet your whistle" has multiple idioms too (slang).

My favorite Brazilian phrase is “too much sand for your/my truck.”

"Muita areia para a minha camioneta"


literal meaning: it’s a lot of sand for your little truck.

rough translation: he or she is out of your league

When I lived in County Donegal (Republic of Ireland) a couple of my favourite phrases you'd hear in passing were:

"Now we're on a pig's back" - doing well

"They're doing a big thing" - performing a task, but perhaps in an over complicated way

"High on the hog" is where the good fat is. Prosciutto comes from that part.

This is strange. I was curious about the meaning of “pretending to be armless John” so I googled it.

There is only result for the use of that phrase:

Your post.

So what's your fun example situation for us of someone “pretending to be armless John”?


Act as someone who does not understand a situation in order to not do something or not face the consequences.

An explanation I read is a reference to mutilated men being dismissed from going to war


( A Google translator might help)

João-sem-braço (literally, John-without-arms) is someone who feigns ignorance, pretends they're not aware of something to avoid doing something unpleasant or for personal gains.

A reputable publication in Brazil had a columnist write about the origin of the sentence here (obviously in Brazilian Portuguese): https://veja.abril.com.br/blog/augusto-nunes/de-onde-vem-as-...

Apparently, beggars would tie one arm (or both) around their body under clothing, pretending to have been injured in war.

Couldn't find any googling in Portuguese, but that is a reference to being screwed by the government seems a good guess

The most common use is actually a lot more vulgar: "se fudeu de verde e amarelo".

But this is an expression that would never appear in the NY Times.

"In May, in exchange for using her crochet-and-elastic design and her name, PilyQ paid Ms. Ferrarini the equivalent of about $5,100. (In January 2019, she’ll get an annual fee of about $7,700.) Neiman Marcus and other major retailers now sell a suit under the name “Platinum Inspired by Solange Ferrarini” for about $170."

Everyone is screwing everyone.

The term “App Store” wasn’t a thing until Marc Benioff creates it, abandoning the mark to Apple in 2008 when he and Steve Jobs discusses it (Benioff gave App Store to Apple and Salesforce used the more enterprise-sounding AppExchange.) The only reason that phrase became “generic” is because Apple made it into a household name. It wasn’t like people were using App Store in conversation until Apple’s App Store became a thing. Claiming it’s generic is a weak argument because that term as a description of a store used to sell computer programs didn’t happen until Benioff and Apple. You didn’t get “bullied”: you were using a phrase that had a valid trademark issued, knowing good and well that it was an Apple trademark. And, at the time of the trademark filing, it was anything but generic. It wasn’t like the term “Coffee Shop” which has been in common use for a very long time. App Store has a very specific meaning: it referred to Apple’s App Store, that others have attempted to use it doesn’t make it less novel. It was novel at the time of filing. It would be like trying to challenge the copyright on Kleenex or Chlorox: names that are in very common use, but common use arguments don’t work retroactively, which is what you seemed to have been arguing: “App Store is in common use so I should be able to use it.” It came into common use after Apple trademarked it, that doesn’t weaken the original filing. You could have used Application Shop, App Shop, App Emporium — a myriad of options. Instead, you specifically wanted Apple’s mark because Apple had done the work to legitimize the term so you wouldn’t have had to. You weren’t bullied: the trademark is valid and you infringed it. That it’s being challenged now is of no consequence— the mark is still, at present, valid.

Could he had, in your opinion, used "Application Store"?

I think so. App sounds like an abbreviation for Apple but Application does not.

I'm not sure it's a very good idea to start self-censoring word usage based on whether they sound like a prefix of a large company.

In this case it's Apple censoring you.

I would argue that it is the law censoring me, on behalf of Apple. I think the law is wrong and unjust in this case, though.

I remember this. You have the link change names every time you refresh the page. I couldn't believe that app store was something they wanted to copyright. It's literally short for Application Store. I always thought if you had someone sell your product on dedicated hardware it might work, but then that's a ton of overhead. :/

A sad tale of hypocrisy and the little guy losing. It would be less upsetting if Igrit wasn't so sue happy herself

Just the other day on HN was the thread on "Why Aren’t Rich People Happy With the Money They Have?"[0]

You would think $9M would make her more content with life. But sadly as humans we seem to always want more. I often wonder whether it is easy to judge because I don't have that money and those problems. Either way her greed was her undoing. She could have happily continued making a decent amount of money from the bikinis even with competitors selling similar wares.


Oh for sure, people will keep comparing themselves to others. 9M is still not "fuck you" money, it'll buy you a Lamborghini but not a classic car collection and the means to store, maintain and secure it. For example.

Please. $9M is very very much deep in the fuck you money territory.

well i guess the point the parent commenter was making is that it's middle class fuck you money. once you enter the rarefied space of say, new york's upper west side it's probably chump change

Using the brand is wrong but making a similar product? Isn't what she did in the first place?


Appropriates a handmade native Brazilian bikini, has it made in China and makes $9MM.

Sues others for making similar designs.

This is essentially the story of Supreme.

Does supreme sue people for anything besides using their logo??

Their logo is an obvious (and admitted) ripoff of Barbara Kruger's work. https://en.wikipedia.org/wiki/Barbara_Kruger#Supreme_lawsuit

Thanks for the link, this quote is great:

'In response, Kruger said, "What a ridiculous clusterfuck of totally uncool jokers. I make my work about this kind of sadly foolish farce. I'm waiting for all of them to sue me for copyright infringement."'

Even their logo makes no sense as a trade mark.

Supreme is a common noun, and uses one of the most common typefaces, Helvetica, on a solid red background. There’s no unique aspect to their logo at all.

Maybe I should start a company named The. Start suing any product line prefixed with “The”

>Supreme is a common noun, and uses one of the most common typefaces, Helvetica, on a solid red background.

It's an italic version of (or very similar to) "Futura bold oblique" and it was used in white on a red background by the artist Barbara Kruger as (massive irony here) a critique of consumerism. Supreme then took that influence to create their logo.

And Barbara Kruger is getting nothing for this?

Seems that way.

Pretty much.

> Supreme is a common noun, and uses one of the most common typefaces, Helvetica, on a solid red background. There’s no unique aspect to their logo at all.

So? Together they make a recognisable brand. That's what matters.

> Maybe I should start a company named The. Start suing any product line prefixed with “The”

You can't sue "any product line", only ones in the same sector which could be confused with yours. McDonald's can't sue a car mechanic called McDonald's. Good luck making "The" a recognisable brand in any sector.

Or the story of Disney.

As much as I think Disney is a bunch of over-sueing bastards, with one expecption I can think of [1], they use stuff in the public domain.

1: https://en.wikipedia.org/wiki/Kimba_the_White_Lion

Also, to be fair, Disney does a lot of real creativity with the public domain stories they adapt. They aren't just copies.

The originals don't have enough merchandising tie ins.

History repeats itself. As Fortnite currently getting sued for infringing upon dance moves The Carleton, The Floss, etc.

Exactly, both dances taken from others and claimed as original by the litigants.

And I've seen the Carlton in a couple of games much before Fornite was a thing.

I think the important difference might be that Fortnite is making money off of them. Not necessarily agreeing with the lawsuits but that may be one reason why Fortnite is being sued but not the others.

What happens it you get bullied by someone into settling a suit and it later turns out to be baseless? Seems like real life poker.

This is Skechers' entire business model

or as the saying goes - he who screams the loudest.

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