Ah, Valentine’s Day. Romance is in the air. And hearts are everywhere. On cards and gift boxes, in tweets and other social media, in emails, on restaurant tables, in print ads, banner ads and as candy and jewelry. But before you rush out to add a heart design to an e-card, an email, a Facebook or Tumblr or Instagram post, or anywhere else, you need to consider this – is the design yours for the taking? Or will you be committing an illegal act?
To fully understand the looming legal implications, it helps to know how hearts became part of St. Valentine’s Day. But to do so I need to lay a proper foundation (I am a lawyer, after all). We start with St. Valentine, previously known as Valentinus. Sorry to say, his story is not at all romantic. According to reliable sources, he was a Roman priest and physician who was arrested, condemned to death for his faith, beaten with clubs, and finally beheaded on Feb. 14, AD 270. Not romantic by any definition. But as it turns out, February 14th was the eve of the Roman festival of Lupercalia, celebrating the god of fertility, which was quite erotic in nature. Part of the celebratory tradition was the drawing by young men of lots with the names of women who would be their “romantic” partner for the evening, or longer. The church, unable to stop this highly enjoyable (apparently by both sexes) custom, decided to find a saint to patronize the day, choosing Valentinus, who became the patron saint of lovers. It thereafter became a tradition to exchange with one’s actual or fantasized beloved handwritten messages of amour on February 14th, the day of St. Valentine.
The origin of the use of the heart shape for this lovely day, however, is less certain. Theories range from its being in the shape of a plant (silphium) used as an herbal contraceptive in ancient times, to various shapes associated with certain parts of the female anatomy. The shape of Cupid’s arrows, as depicted in many Renaissance paintings, also is a possible source. And some believe it to have originated with the shape of swans – long associated with St. Valentine’s Day – kissing, which is heart-shaped.
Whatever the origin, the use of the heart shape for St. Valentine’s Day is now part of our culture and ubiquitous. But as popular as heart designs may be, not all are in the public domain. Original heart designs are protected by copyright law; “original” meaning not substantially copied from some other source. Thus, while the basic heart shape is available for all to use, original variations on it are not, unless they (1) no longer are protected by copyright either because of age or failure to protect, or (2) have been donated by their owner to the public for use, such as publicly available clip-art. There is in fact no way to know for sure if a particular heart design is protected by copyright since one does not have to use the official copyright notice (the one with the ©) or obtain a federal copyright registration. Copyright since 1978 in the US (and longer throughout much of the world) attaches to a protectable design from creation; a registration merely endows it with some important additional rights.
And it’s not just Valentine’s Day heart designs that are protected. My LA-based client Nina B. Roze created and successfully markets legging products that frame the buttocks area with a heart shape, that not only is protected by copyright law, but by trademark law as well.
Other heart designs also function as trademarks, such as the heart tummy design on the Care Bears “Tenderheart Bear,” the rights in which I spent many of my days as a young lawyer protecting.
And my little cuddly friend is not alone; there are many intellectual property disputes involving heart-shapes and there currently are over 10,000 designs comprised in part of heart shapes sitting on the trademark register of the US Patent and Trademark Office.
So who owns your heart? You do, except perhaps on this romantic day, when someone else may have stolen it. But when it comes to heart designs, do a little bit of checking first to ensure that the heart you may be stealing does not come with a cease and desist.