A Fail Whale Trademark?

I recently sent a call to readers asking for stories to blog about. Mr. Joe Scarry from Chicago kindly sent me a recent article in the New York Times Magazine profiling the curious rise of the Fail Whale.

The Fail Whale
The Fail Whale

The Fail Whale image was created by Ms. Yiying Lu. Ms. Lu initially created the image to send as an e-card to a friend. Eventually, she uploaded the image to iStockPhoto. Under the iStockPhoto image license terms, the image was made available for a few dollars under a perpetual license.

Things unfolded when Mr. Biz Stone, one of Twitter’s founders, purchased an iStockPhoto license of the whale image. Mr. Stone used the image so it would appear on Twitter whenever that site experienced an outage due to heavy traffic (a smart branding move in my opinion since the image is funny, unexpected and connotes teamwork). The Twitter community quickly grew fond the whale image. One of the fans named the image the “Fail Whale”. Another fan tracked down Ms. Lu and her online fame only grew from then.

There is now a Fail Whale fan club, Flickr site and community art site. In true Web 2.0 spirit, the Fail Whale image has become part of a community’s culture.  The community owns the image, freely adapting the image in new ways. It was a community member who first named it the Fail Whale. Many of the community websites use the Fail Whale term without worries about ownership. Here is what the Fail Whale fan site says about itself:

“This site is here to poke fun at the people who seem to take online social network downtime a little too seriously. Failwhale.com is not affiliated with Twitter. Rather, it’s a love letter to the hard working folks at all of our favorite online social networking sites who lose sleep over the concept of scalability.”

The community for all purposes owns the whale. Will that someday change since it has become valuable? Ms. Lu already took the image off the iStockPhoto site which allowed users to perpetually license the image for a low price. She has also  recently created an official Fail Whale Merchandise Site. The next logical step to build a business around the Fail Whale is to apply for a trademark, and then license the trademarks for merchandising. (Note: a copyright can eventually become a trademark if it identifies a source of goods).

Will the Fail Whale remain open for the community’s free use? Would that be the best thing? Or, will it be Generation Y’s version of Micky Mouse or Hello Kitty? The next time you see the Fail Whale look closely. You just might see a small round trademark symbol.

P.S. Have you lately come across an intellectual property controversy that piqued your interest? If so, please send it my way.

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