The New York Metro Transit Authority (MTA), facing a budget gap of $400 million,¹ has begun to go after copyright and trademark infringers who use or display any of the MTA’s protected symbols.² Among these protected symbols are the train numbers and letters, maps of the NY subway system, photos of Grand Central Terminal and the phrase “if you see something, say something.”³ The MTA has gone after Nike, amateur photographers, Bagel shops, T-shirt designers, religious groups and others in an effort to protect the MTA’s intellectual property.⁴

The MTA has attacked companies for producing charm bracelets, teddy bears, promotional posters and websites displaying subway logos and maps.⁵ The MTA is trying to cash in on the use of its imagery. Recently a company in Brooklyn was granted a license to produce customized subway signs. Unlike many shops who sell posters of NY subway maps, or T-shirts with A train logos on it, this Brooklyn company paid the MTA to use its images. The MTA earned $3.6 million from these licensing agreements.⁶

One of the more controversial arguments by the MTA is that smartphone applications (or “apps”) displaying MTA timetables or maps are infringing on the MTA’s copyrights. Anthony Townsend created an app telling the schedule times of the Metro North railroad.⁷ He stated that it was not the official MTA schedule, yet the MTA demanded he pay for a licensing agreement to issue this app.⁸ In response, Townsend argued that the MTA could not put a copyright on facts, like timetables.⁹

However, the MTA is not alone. The London Underground sued a pub in Dundee, Scotland for using the name “Underground Bar” and using Underground symbols inside and outside of the bar.¹⁰ The Underground argued that the symbols should be taken down and that the bar should pay compensation for their use. The pub owner’s argued back, saying that nobody would mistake a pub for an Underground Tube station, and that the signs were not even the same colors as the Tube signs.¹¹

These claims by the MTA and Underground bring up some interesting issues about use of ideas, derivative works and the public domain. Looking at derivative works in the Underground Bar case, the pub signs were black and gold, not blue and red like the original Underground signs.

In another case, Joe Moore was targeted by the MTA for creating a T-shirt with an N inside a blue circle.¹² The MTA argued that Moore had committed a copyright violation, simply by using a white letter inside a colored circle, even though the MTA symbol for the N train is a yellow circle with black lettering. Is the MTA able to claim that any number inside a circle is their intellectual property? The MTA retracted its claim, once they discovered Moore had actually copied the San Francisco train system’s logo, not the MTA’s.¹³

For use issues, some have argued that the use of MTA symbols did not damage the property rights of the MTA in any way. For example, how does a bagel shop with an F train sign outside of it interfere with the MTA’s purpose of providing transportation? Is the use of the symbol for a transferred purpose enough to show independent creativity and protect the bagel shop? The same arguments were made for the bar with the Underground signs. On the other hand, if the MTA had created a smartphone app and wanted to sell it, then perhaps they could restrict other smartphone app creators from using MTA symbols and maps in a similar app.

And finally, one could argue that the symbols and maps used by the MTA are so pervasive that they should be in the public domain and able to be used by all. For example, subway maps, train symbols, buses and timetables are so present around New York City that photographers who take pictures of these things should not be charged licensing fees to use these pictures.

The MTA should be able to recover for significant copyright infringement. However, they should meet a high standard to show that the infringement was detrimental to the MTA’s full economic use of that symbol or phrase. MTA symbols and maps are used on websites, bookmarks, T-shirts, photographs and more. The subway is as common a New York image as Central Park, yellow cabs and Times Square. Restricting the use of MTA symbols diminishes the creative pool of ideas available to New York artists and entrepreneurs.

Is the MTA ever really going to try and sell subway map bookmarks and T-shirts, like the ones in the shops littering Times Square? Can a 1 on a side of a train in a photograph be called a photographer’s copyright infringement? Are New York themed restaurants, posters and paintings not allowed to include subway signs or images? Do smartphone apps showing MTA published timetables violate the MTA’s economic rights? If the MTA can make money from these accusations instead of raising my MetroCard fare, I say go for it. Otherwise, many of the MTA’s symbols have simply become images of New York City as a whole and should be considered as in the public domain.
_________________________________________________________________________________________

¹ See The Editors, Why is the M.T.A. Always in Trouble?, N.Y. TIMES, December 16, 2009.
² Heather Haddon, From Corporate Giants to Photo Peddlers, MTA Takes on Copyright Thiefs, AM NEW YORK, January 4, 2010.
³ Id.
⁴ Id.
⁵ Id.
⁶ Id.
⁷ David Alpert, New York MTA Threatens Blogger, Asserts Copyright over Schedule, GreaterGreaterWashington.com, August 19, 2009.
⁸ Id.
⁹ Mike Masnick, NY MTA the Latest Public Transportation Group to Declare it Owns Facts, TechDirt.com, August 14, 2009.
¹⁰ Dave Farber, London Underground Sues Scottish Bar over Copyright, Interesting-People.org, December 3, 2998.
¹¹ Id.
¹² Haddon.
¹³ Id.