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A Panda is NOT a Fixed Medium of Expression

I am a card-carrying member of the Zoological Society of San Diego. I love the Zoo and the Wild Animal Park, I love to hang out and watch the animals, and I love what the Zoological Society's missions and methods are. But when I was recently at the zoo, I noticed this sign posted in the Panda area. Sorry, I mean the "Giant Panda Research Station."

WTF??!?!!
Let's be clear: a Giant Panda is not protectable intellectual property. An animal is not copyrightable, because it is not a fixed medium of expression. Similarly, a Panda cannot be trademarked, nor is it patentable, nor is it a trade secret. A picture of a Panda, a description of a Panda, yes. But an actual Panda? No way. If a Panda were just walking down the street, I could take a picture of it, and slap it all over whatever commercial materials I wanted. No matter who it belonged to. I think it might be fun to see the Zoo try to forward an appropriation of likeness argument on behalf of the Panda, but I'm pretty sure that only works on people. -grin- So how on earth can the Zoo assert this right? Did they just make it up?

It probably has something to do with this nonsense in tiny print, that I just now noticed, on the back of my membership card:

Member agrees not to commercially use any photography or reproduction in any form taken during any visits to the Parks . . .

I assume the same thing is on the back of the tickets. You see a lot of this, what I'm going to call "ticketwrap" nonsense about, and I think it's completely unbinding. I signed nothing, I made, nor contemplated, nor was aware of, any such agreement. I'm sure the zoo would argue that I should have been aware of such a thing, and that I submitted to it by entering the zoo. Baloney. I made no agreement, and there was no contract. In any sense of the term. See Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69. "It is not enough merely to show the form of a contract; it must appear also that the agreement was understandingly made." See also Kravitz v. Parking Service Co., 29 Ala. App. 523. I'm sure I could find more, better authority, but who's got the time for that? I'll wait until they sue me. Why would they sue me, you ask? For this, mayhaps:

So, go, buy your Panda Tee, which, and let me be perfectly clear on this point, is a reproduction of a photograph that I took at the San Diego Zoo, that I am using for commercial purposes. Which I believe I am legally entitled to do. So, bring it, Zoological Society.

Full post as published by The Mighty Argos on July 03, 2007 (boomark / email).