Independence Day, or Fourth of July, has been a federal holiday in the United States since 1941, but has been observed since 1777, the first anniversary of the signing of the Declaration of Independence. Fireworks are commonly used in celebrations and, not surprisingly, the intellectual property protecting fireworks is quite complicated.
Why do we Celebrate with Fireworks?
Grand displays of fireworks have been used to celebrate Fourth of July since the first Independence Day celebrations. Before the Declaration of Independence was even signed, John Adams envisioned fireworks as part of the festivities. In a letter to Abigail Adams on July 3, 1776, he wrote that the occasion should be commemorated “with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.”
The first commemorative Independence Day fireworks were set off on July 4, 1777. Most early fireworks were re-purposed military munitions, fired for entertainment rather than military purposes.
During the Renaissance, fireworks became popular in Europe and were used in nationalist and imperialist celebrations by figures like Peter the Great and Louis XIV, a practice the new citizens of the United States of America would later adopt to celebrate their new country.
How do fireworks work?
The first firework was made by a Chinese monk named Li Tan over 1,000 years ago. He stuffed a piece of bamboo with gunpowder and and threw it into a fire. Due to the fast burning gun powder and compression of the bamboo, the result was a small explosion, which created a loud bang. Colors were incorporated into fireworks during the Italian Renaissance by adding steel and charcoal to produce yellow and orange. More colors were added to displays by incorporating different metals, which when heated emit characteristic wavelengths of light (i.e., colors).
To launch fireworks into the air, pyrotechnics use a chain of two explosions. They load a firework into a “mortar”, a tube that is essentially a cannon. They spark a fast-burning fuse that ignites the gunpowder, which is packed in a separate compartment at the bottom of the firework. A package shoots into the sky that contains an outer shell made of plastic or paper filled with gunpowder embedded with explosive spheres called “stars”, which become the points of light we see in a firework. A “time delay fuse” runs through the firework and ignites at the same time as the fast burning fuse, but it takes longer to reach the gunpowder and stars inside the firework. Pyrotechnics calculate the length of the time-delay fuse so that the firework does not ignite until it has reached a certain altitude.
More complex fireworks can be created by stringing fuses together and building chambers of gunpowder in the firework. “Pattern shells,” which rely on time-delay fuses within the firework and other techniques, can cause the stars to explode in recognizable shapes. Firework technology continues to evolve and firework designers are starting to use compressed air instead of gunpowder, which is considered safer and allows for greater precision. There is also ongoing research into making the process more environmentally friendly by using alternative ingredients.
Can you Copyright a Firework Show?
A visual art work must be “fixed” in a “tangible medium of expression” to be eligible for copyright protection. To gain protection the work must be embodied in some form that allows the work to be “perceived, reproduced, or otherwise communicated for a period of more than a transitionary duration.” The copyright office reviews creative works on a case-by-case basis. Some works may not be sufficiently fixed to warrant registration. The office cannot register a work created in a medium that is not intended to exist for more than a transitionary period, or in a medium that is constantly changing.
It is worth noting that the fact that uncopyrightable subject matter has been fixed through reproduction does not transform the underlying subject matter into copyrightable material. For example, a photograph or video of a fireworks display may be a copyrightable fixation of the photographic image(s) of the fireworks display, but the fireworks themselves do not constitute copyrightable subject matter. According to the Berne Convention, an international agreement governing copyright, a work can be protected by copyright only when it is written or recorded on a fixed medium. Since a firework display is not recorded on a fixed medium it does not receive copyright protection and it can be photographed but not always recorded/filmed. The photograph taken of the display can be protected as an original photographic/artistic work, with the copyright typically owned by the photographer. Therefore, you are free to upload any photographs taken at a fireworks display.
Music accompanying fireworks adds to the fireworks-watching experience, however, using non-original music may present a number of copyright law issues. All musical works and compositions considered to be in the ‘public domain’ are exempt from the protections of the copyright law. While most modern musical works and compositions qualify for copyright protection for up to 95 years, all musical compositions created before 1922 are, preemptively, in the public domain.
Many firework displays are paired with local radio stations that provide simultaneous transmission of the music selected for the display. In these instances, it is commonplace for the radio station to comply with copyright laws to the extent that they may apply to a particular display through the use of their blanket license to air the music. Nothing prevents a fireworks display company from requiring the display sponsor to accept responsibility for all copyright and performance obligation licenses.
Many theme parks and large firework display sponsors rely on original musical works and compositions, completely avoiding payment of royalties and claims of infringement. These companies frequently register their original musical work and compositions in order to protect against infringement from competitors.
Private displays are considered to be non-public and non-commercial in nature. Private firework displays are not likely to have the same concerns when using non-original music. Civil enforcement actions in the context of fireworks displays are rare due to the expense of copyright infringement lawsuits.
Bastille Day is a French national holiday commemorating the storming of the Bastille, an important episode in the French Revolution. Each year, fireworks are set off from the Eiffel Tower. When the 100th anniversary of the building of the Eiffel Tower was commemorated, the French Supreme Court held that a show “consisting of lighting effects of the tower by a combination of ramps and projectors, along with image projections and fireworks” is a work of art protected by copyright. With this holding, the Court affirmed a lower court’s decision that a publisher cannot sell postcards reproducing photographs of the show without the show designer’s prior authorization.
Can you Patent Fireworks?
There are several patents involving fireworks. One of the earliest fireworks patents, U.S. Patent No. 638,416A, issued in 1899 and is entitled TOY FIREWORKS. Fireworks lovers across the nation can also thank inventor Gioiosa Joseph for improving upon the firework design. Gioiosa’s 1930 FIREWORKS patent allowed for smaller displays to be put on more safely, without fear of losing limbs by clamping the firework to a stable object while being discharged.
One company many associate with Mickey Mouse ® and a certain magical kingdom is also a large holder of firework patents. The Walt Disney Company has been assigned many firework patents over the years, including U.S. Patent No. 5,627,338, entitled FIREWORKS PROJECTILE HAVING DISTINCT SHELL CONFIGURATION. This patent covers a projectile that “includes a shell constructed from a binding agent and an explosive additive which explodes the shell into small particles… the external geometry of the projectile also is configured so that the projectile tumbles when launched and follows a more predictable, repeatable, and accurate path in flight.” Disney also owns a patent on an ELECTRONIC TIME FUZE, which is an electronic time fuse for controlling and initiating the explosion of an explosive (U.S. Patent No. 5,440,990). Finally, Disney owns a patent for Precision Fireworks Display System Having a Decreased Environmental Impact, which allows for the explosives to rapidly burn so they turn into flakes that are harmless by the time they reach the ground.
So, this 4th of July when you’re sitting back and enjoying your local fireworks display feel safe to snap a few pictures and remember many of the fireworks you will be enjoying could be patented.
Everyone at Suiter Swantz IP would like to wish you a safe and happy Fourth of July.