You may or may not know Oct. 9 is Leif Eriksson Day. You may or may not know Eriksson, a Viking, may have been the first to land in North America (sorry, Columbus). You may or may not know the Viking helmet, as it is portrayed today, is incorrect.
What does this have to do with the law?
To be fair, this post is a stretch (because who can, really, relate Vikings to the legal community), but I’ll do my best to connect the erroneous, ubiquitous image of the Viking helmet to the Fair Use doctrine.
The Fair Use doctrine, in layman’s terms, says an individual cannot use copyrighted material without first asking permission from the rights holder (who created or owns the material, or both). The doctrine is comparable to the written, yet commonsensical rule you had to follow in high school. Example: Students cannot bring weapons to school.
The popularized image of the Viking helmet, recognizable by the horns near the ears, was perpetuated in the 1800s when Scandinavian artists began drawing the raiders with headgear. According to history.com, in the 1870s, opera costume designer Carl Emil Doepler created horned helmets for the Viking characters. However, in 1943, only one intact “Viking” helmet was found. Plot twist: it contained no horns.
This caught my attention. If you Google the term “Viking helmets”, every single commercial (costume) image includes the horns. Basically, costume companies, every time they design a new “Viking” helmet, steal this image from Doepler.
This is wrong. Not only because the image is clearly taken from Doepler’s original idea of what a Viking’s helmet may look like, but also because it is culturally inaccurate.
Doepler, for obvious reasons, never met a Viking in his life. But he is free to use his imagination to create an image, though it may be inaccurate, of the traditional Viking headgear. Others are not, especially without his permission, free to use this same image.
If Doepler were alive today, I would gladly represent him in a trial.
I dare say we would win the case.