The Australian Women’s Weekly and the violation of TUX the penguin
The Women’s Weekly has a book on shelves at the moment called “Party Animals: Birthday Cakes for Kids”. On the front cover you can see one of the cakes that in the book is listed as “The Penguin Prince” (or a name to that effect, I’m not paying for the damn thing).
Walk past the magazine rack in a supermarket right now and you’ll probably see it. If you have an eye for open source mascots, the thing will friggin’ leap out at you.
(Source: ACP)
The Australian Women’s Weekly has of course copyrighted the above image, so you would think that I’d have to abide by fair usage provisions in the act. Only the relevant portion/no more than needed and such. Like, I couldn’t say… do this;
(Sauce: Jack Thompson’s Old Smokey BBQ Sauce*)
Now it’s not time to crank up Judas Priest’s ‘Breakin’ The Law’. I haven’t done anything wrong. The simple fact is that ACP’s claim to this piece of intellectual property is fraudulent.
Meet TUX.
(Source: Larry Ewing – Created using The GIMP)
ACP has its own gimps “create” (ahem) “The Penguin Prince” by blatantly lifting Larry Ewing’s TUX. What are the conditions on the use of Larry Ewing’s intellectual property?
“Permission to use and/or modify this image is granted provided you acknowledge me lewing@isc.tamu.edu and The GIMP if someone asks.“
(Larry Ewing, 1996)
I had a read of the book this evening while at the supermarket (as having used the likeness before I knew of the above clause). Larry Ewing isn’t cited.
So why is this important? Two reasons; the cultural significance of TUX and secondly the philosophy TUX represents.
TUX ((T)orvalds Uni(X)) isn’t a small phenomena. Go to Google Image Search and perform a search on “Tux”. You’ll find a lot more penguins than tuxedos. This is because TUX is the official mascot of the Linux open source operating system.
Linux isn’t just a popular operating system; it’s a cultural phenomena. It embodies an entirely different philosophy to the distribution and ownership of software.
This is where the violation of TUX becomes both ironic and moronic. Linux is distributed under a GPL license, not a copyright license. The various Linux installation disks I have here at home; I can copy and distribute them to my heart’s content without fear of prosecution simply because I am allowed to do so.
TUX embodies software freedom** and a philosophy of intellectual property in opposition to copyright. ACP nab TUX and copyright him, all without citing Larry Ewing.
Ironic. Moronic.
~ Bruce
* Actually very good if you like sauce with a kick (a portion of all sales go to Landcare).
** Software Freedom Day is coming up this September the 15th.
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At first I wasn’t convinced, but then I looked at the feet. Plagarism.
The feet and the positioning of the wing tips is the give away. Also, the outline diagram inside the magazine (which I couldn’t post here ’cause I’m not forking out $13 for the mag) is far more obvious in its facimile.
The main difference is the bow tie, which looks like Tuxette hairbow has fallen down. (Tuxette is Tux’s twin sister. Little girls like Tux, but often want a Tuxette as well)
Image of Tuxette
I can just imagine the shock at WW if Richard Stallman stormed in with a legal note drafted by Lessig
I don’t know; it’s just a little cake penguin. The cook book in question does that all the time. You can buy the birthday version with a bunch of well known characters in it. I don’t have a copy handy but I don’t recall the authors referring to the fact that other people had actually invented the characters.
Bruce … You certainly are very observant in the supermarket.
Miss Politics
“I don’t know, it’s just a little cake penguin”.
The problem is not them using it, (we geeks encourage that), or modified that (we encourage that too). The problem is that they claim copyright on a GPLed (aka copylefted) work, and that’s an evil thing to do as far as us feeks are concerned. The GPL is a way of stopping someone insinuating that you don’t own something that is already yours. It’s the thin edge of the cake.
If the WW didn’t at least give attribution and the “you can get the basic design HERE for nothing, they are in violation of the licence.
I know Tux/ette was GPL2, and doubt it has been moved to GPL3 (which I haven’t read yet. But I know rms and Lessig wouldn’t have watered things down, and Microsoft are S***scared of even sharing a room with GPL3 software lest they have to give away MS-Windows and MS-Office.
Hmm. Bruce, in your place, I’d be sorely tempted to do the If you think you see a violation thing. WW has big enough pockets to be worth suing by the FSF.
Mind you, I think Chuck/Beastie the BSD Daemon is under a much stricter licence
Maybe we get Chuck/Beastie to stick his pitchfork into the WW editor’s backside while Tux and Tuxette flap the editors face. And just think of what the OpenSSH puffer fish would do for the cookery book.
Here is the BSD daemon: He’s cute too. http://en.wikipedia.org/wiki/BSD_Daemon
Seems pretty clear that the magazine is up to some low-handed shenanigans!
Bruce,
If you go by the letter of Larry’s licence (and yes, that is the licence, Tux is not GPL), until someone asks where the penguin design comes from, the company is under no obligation to disclose this information. The courtesy of attributing Tux to Ewing whenever used within the Open Source community is simply that; courtesy.
A recent thread on the Linux Australia mailing list regarding the SA Lotteries use of Tux (who got it from NSW Lotteries, who commissioned the design from a graphic design firm), in which Jon ‘Maddog’ Hall partook, explains that frivolous accusations against those who use the design could easily be damaging to both Linux and Open Source. Campaigning on the front of moral obligation and trademarking would quickly sink to this level, and arguments of “BUT IT’S MIIIINE!” do not garner a whole lot of respect.
However, plagiarism is another matter all together. A well thought out strategy of awareness along the lines of ‘Hey, did you know that design has been around since 1996, and is freely available on the internet. I hope you didn’t cough up too much for it’, would go down much better, and probably receive commendation, rather than criticism.
Flies. Honey. Capisce?
Flies. Honey. Capisce?
“Capisce?”. That doesn’t sound like honey to me.
You really don’t need to be so patronising about my understanding of the license either. I said Linux is GPL, I didn’t say TUX was (sorry Dave, have to disagree with you on this one).
This discussion has been going on elsewhere (Bettong Google group) and I can assure you that if you saw my participation, you would see your allusions as to my position (ie “BUT IT’S MIIIINE!”) are somewhat of a misrepresentation. It’s like I said elsewhere, “who said anything about shutting them down?” and indeed have suggested “honey” like approaches myself.
I’m being somewhat flippant above (which I guess is pushing the boundaries of what I write about on this blog). I would have posted a more serious post on the matter yesterday if not for other responsibilities and I still may. But seriously, even in light of the confusion my above flippancy may create, you could give what I say a bit more honest a treatment.
Your investigative wiles delight us, Bruce.
On TuX not being GPL, I defer. My mistake. I remember it being open sourced and by that time most people had stopped trying to cobble together their own one and used one of the biggies (GPL/LPGL/BSD/Perl/Apache). Doh!
Brill – in my search I found this, an actual tux computer.
Hey, that’s pretty cool… I want one!
Bruce, the Tux’s local reseller is
Transcom Communications Systems Pty Ltd
Perth, Western Australia
Tel: +(618) 9218 9900 Fax: +(618) 9218 9911
http://www.transcom.com.au
(And it’s good for kids cos its small, and being RISC, can’t run Windoze)
The item that is copyrighted is that particular photograph of that particular cake. If I take a photo of the Sydney Opera house, I would own the copyright of that particular photo. It doesn’t mean I own the opera house. Likewise in this case, Womans Weekly owns the particular photo of that particular cake. If I took my own photo of a tux cake I would own that particular photo. Having copyright does not mean that you own the thing being photographed, only the particular photo itself. The only area where this can be an issue is if it becomes a trademark issue [which is entirely separate from copyright law].
Anyway that’s my $0.02
Actually, David, you would not own the image of the Opera House if you used a tripod. Also, a photograph of a cake may also be plagiarism. you may own the photograph but not necessarily the copyright over that photo of that cake. The picture on the cake is an altered GPL image and can not be copyrighted and, in turn, the photograph can not be copyrighted because of the original infringement.
Anyway, I like Linux.
David,
Woman’s weekly didn’t just copyright the picture of the cake, they copyrighted the likeness as a part of their general copyright of the entire content of the book.
Oh. And for clarity, the purpose of this article is pointing out the irony of copyrighting the (free to use) mascot of a GPL’d piece of IP.
I was just in Australia this last week. I pulled this cake book of the shelf thinking it was a Linux mag. Talk about feeling the effects of trademark confusion.
At least you can make a Tux cake for your next Linux gathering. Although you will have to call him the Penguin Prince and you won’t be able to modify the design legally!
Hi Bruce,
I stumbled across your post while researching for my own post on the Tux cake (AKA The Penguin Prince) in the Australian Women’s Weekly “Kids’ Birthday Cakes” recipe book.
You can see a picture of the actual cake (made by yours truly) and read the post here: http://lanabrindley.blogspot.com/2008/03/my-definition-of-word-soon.html
Cheers,
Lana
cool picsxxx