I’m a Copyright Junkie…
I Know…. Sounds Painful…
Today, I found some amazing articles on copyright and trademark. Basically IP.
One pretty amazing article was on copyright, bad agents and lawyers, really bad contracts, divorce, and more twists and turns than anyone will be able to figure out because of all the stupidity over the decades. It concerned the Tom Clancy’s estate and Jack Ryan. I am not going to link to it because the copyright and trademark concepts in it will just give anyone who is not a copyright junkie the wrong ideas.
A second court case article was posted about Dwight Yoakam suing Warner Brothers for continuing to sell his songs. Actually, he’s suing them for copyright infringement because he filed the 35 year return of rights and got his songs back, but then Warner Brothers just kept on selling them. Oops.
A lot of smart musicians and comic artists are using the 35 year termination rule to get work back. Writers, not so much yet. (No surprise, there.) You can google the case if you want to read about it. Pretty simple one.
A third case is about Buck Rogers and the two studios who are in development stages of different Buck Rogers shows. One even has George Clooney attached. This is another complex one full of stupidity and greed and more IP and contracts than you can shake a stick at. Buck Rogers was created by writer Philip Frances Nowlan in the novella Armageddon 2419 A.D.
It appeared in Amazing in August 1928, but Nowlan estate did not renew the copyright on the original novella and it dropped into the public domain.
Oops…
But a man by the name of Dille was approached by Nolan in 1928 and that lead to the serialization of Buck Rogers into Sunday comics in 1929, then books, television series and so on and so on over the decades. More than you can even imagine. It seems Dille got ahold of the control in some fashion or another back then.
The Dille Family Trust claims ownership of the character because of the comics and such, and they are one of the parties in the modern suit. They also filed for bankruptcy at some point over the years making things even crazier. Don’t even bother to try to understand this one and who is who and why things are happening unless you have studied trademark and copyright for years. It will just make your head hurt. At some point someone will pay money to other people and maybe one of the shows will be made.
So I know most of you reading this have little-to-no understanding of copyright and can’t seem to make the time to learn even the basics, but let me tell you, the three battles I just gave you a brief (and incomplete) glimpse of constitute millions and millions of dollars in IP.
And like Nolan, you just never know when your little story might still be being fought over 93 years later.
16 Comments
Topaz
Thank you for sharing those glimpses.
Philip
My favorite copyright case is John Fogarty sued by his former record company for plagiarizing himself. He won.
dwsmith
Well, sort of. But not really. There were a lot of legal reasons behind that move.
James Palmer
I saw the Jack Ryan stuff the the other day. It’s all very twisted, and not even an old character like Sherlock Holmes, but a character created in my lifetime. Creators can be very small-minded, even about their own work.
I remember David Morrell’s book about writing, where he talked about writing First Blood, and he thought his agent was crazy for securing him the toy and cartoon licensing rights for John Rambo (as you probably know, he killed him off at the end of the novel). But the John Rambo character ended up actually getting made into toys and a cartoon.
Another related thing people should study is Trademark. You can trademark a character’s name so that, even if their stories fall into public domain, no one can write new stories with that character’s name (John Carter and Tarzan are good examples of this).
Anyway, great advice as always.
dwsmith
Uhhh, James, well no on the trademark. Trust me, folks, you do not want to get near what James suggested. You can hurt yourself so much more than you can help yourself. And cause yourself so much more grief than you can even begin to imagine. So disagree with James on character trademarks for 99.9% of all of you (and me included). But I agree with James that you study trademark just to understand what a clusterf**k it is. I did some articles here (chapters on a book for fiction writers on trademark until it dawned on my after three or four of them that I would hurt more people than I would help and I stopped. You can go back and look those up. I think they were back in 2019 or so.
Trademark is another form of IP. But before you even think of going that way, learn copyright at a deep level. That will serve you.
C.E. Petit
The fun part is defining the few percent (it’s more than 0.1%, but not more than 3%) of authors who can and should consider trademarking characters. Note that this is utterly distinct from the proportion of media property owners who can and should consider trademarking characters. As Emily Litella might have said, “Oh! That’s different! Never mind.” (And there’s a distinct point to that: Would the mark “Emily Litella” belong to NBC; to the production company; or to Gene Wilder, who inherited the estate of Gilda Radner? And can you tell without reviewing enough other documents to deforest the area around Our Gracious Host’s former residence in Oregon for 100km or so?)
To be eligible for a trademark in the first place, an identifier (here, a character name and/or distinct character depiction) must be used in commerce, and as or wound up in a distinct identification of both quality and origin of the material. That means, for example, that it’s much, much harder to properly consider a shared-world character as a mark, since “shared world” inherently means “potentially more than one distinct origin.” And it seldom, if ever, works for any but two or three iconic characters per product line, and even then only insofar as an unsophisticated consumer{note 1} would tend to treat “appearance of Character X” as indicating simultaneous “appearance of LiteraryProperty Y.”
And if you really want to see this go off the deep end, compare very-early-printing copyright notices in the first and fifth Harry Potter novels. (I’ve used those as the prompts for exam questions… and let’s just say that I hold the firm that drafted the later one in minimal professional regard.) That’s before getting into side issues like trademarking author names (natural-person authors: no; IP holding companies: possible if done correctly), titles (individual works: no; series: maybe, and probably weak unless extending beyond the purely textual series, and just don’t get cocky about it), and other discrete elements.
The fundamental problem is that it’s so hard to win a lawsuit — let alone afford to win a lawsuit — under the “correct” legal theory of “unfair competition” that a desperate search for certainty has led to misapplication of trademark law. And, especially, by parties hoping to win by bankrupting their opponents. This is an excellent example of why “law” and “arts” are a poor match: In a rational world, there would be a unique, tailored system to resolve “legal” rights and issues… and then we’d get to argue about whether a particular instance fell inside the system, so…
{Note 1} Don’t blame me. That’s what the statute says. If it makes you feel any better, your favorite category-fiction character is judged under the same standards as would be a character in high-end literary fiction.
Robin Brande
Then there’s Taylor Swift re-recording and releasing all her old albums in a new “Taylor-preferred” version to regain control over her music catalog and master recordings. She just released the first of them this past week.
dwsmith
She has a completely different problem that concerns more than just copyright.
Amy
I tied myself in knots yesterday with a story in which I wanted to give the store in it a name (and I wanted the name of the store to be the title of the story). And then I tried to find out whether there might be any kind of legal problem if I called my store the same name as an actual store, even by accident (e.g. when the names of stores don’t appear on an Internet search). I did find businesses (if not stores) with many of the earlier names that I thought of.
I couldn’t find the answer and ended up giving my store a weird and unsatisfying name just to try to head off trouble. But I wish there was a book for writers with this kind of stuff in it, that covers the situations you’re likely to encounter. I think it would be a trademark issue if it was one.
dwsmith
Always better to be safe, but that felt a little far. Where you really have to be careful is when you put the store down, talk about how bad it is, kill a dozen people and the owner covered it up, things like that. But if it is just a setting in your story, and you praise it, better to change a little something, google the store for that town, but otherwise you are fine.
Or when all else fails, pick up the phone and ask for permission. (Don’t bother if you are killing fifty people in the store’s basement.)
Or even better, don’t name the store.
C.E. Petit
One more thing that you can try to clear the name:
Limit it to your local area, named after a geographic feature that makes it ambiguous (not “Bob’s Guns’n’Ammo” or “Manson Family Farms,” but “Two-Corners Abattoir” or “Twin Peaks Woodchippers”). And that, you can search, even if not directly on the internet — your state/county will have a d/b/a (doing business as) registry, and/or you can search your state’s business-entity records.
This will not clear 100% of everything. It will, however, clear legally defensible names… and keeping a clear record of your research (unlike, say, Dan Brown, who was specifically criticized by the judge as a noncredible witness primarily because he kept no research notes) will provide a major defense in itself, demonstrating both that you made a good-faith effort and that you had no intent to name an existing business.
dwsmith
Posting this for C.E. Worth reading and looking up the original case:
Here’s why
you keep your research notes.
The tl;dr version: Dan Brown was sued in England, alleging that The
DaVinci Code infringed the copyright and related moral rights of a book
by Michael Baigent and Richard Leigh, a “faction” book entitled The Holy
Blood and the Holy Grail (“HBHG” below). Brown didn’t keep research
notes; indeed, most of the research was done by his wife, and she never
appeared to testify (Judge Smith was not pleased). Brown ultimately
won… because the claim was ill-founded, not because Brown didn’t shoot
himself in the foot (and had better hope he never has to appear in court to
defend himself again). Had Brown done his own research and kept notes — even
if that was a pile of notes from a research assistant’s summaries — this
entire case would have disappeared faster than his credibility eventually did.
Quoting from Judge Smith’s judgment (paragraph numbers in official report):
343. The Claimants say I should treat [Mr Brown’]s evidence with caution.
That is too high in my opinion. He started confidently enough but ultimately
his confidence was gradually eroded by Mr Rayner James QC’s protracted and
carefully measured cross examination. In that cross examination Mr Rayner
James QC established that in reality Mr Brown knew very little about how the
historical background was researched. He in my view simply accepted Blythe
Brown’s research material when incorporating it in to the writing of part
two of DVC. I do not believe for one minute he was analytical of it or
critical of it; he simply accepted it.
344. The Claimants in cross examination also in my view as I have said
established that HBHG was possessed by the Browns far earlier than Mr Brown
was stating in his evidence. However I do not believe that those failures of
Mr Brown’s evidence lead me to conclude that I must reject everything he
says. For the reasons already set out for example I have accepted his
evidence concerning the books he had when he wrote the Synopsis.
345. It ought to have been obvious to Mr Brown that if he had carefully
prepared his witness statement that his case on HBHG as he put it would
simply fall apart on an examination of the US HBHG, the copying similarities
and the other documents to which I have referred. I do not believe he
consciously lied. His failure to address these points in my view shows once
again that the reality of his research is that it is superficial. This in my
view is the explanation for his evidence. He has presented himself as being
a deep and thorough researcher for all of the books he produced.
346. The evidence in this case demonstrates that as regards DVC that is
simply not correct with respect to historical lectures. The Synopsis was
prepared using a minimal amount of material from the books TR, WAJ and GG
primarily. The major part of the writings of the lectures at a later stage
have substantially come from HBHG.
347. I am aware (this may be an understatement) that the case has wide
interest. It is very important that people do not take parts of the judgment
out of context.
348. Mr Brown is a fiction writer. As a device to writing fiction he is
perfectly entitled to dress up factual scenarios to give an illusion that
supports his fiction. He is not (contrary to the complaints of the
Claimants) going into deep and detailed research for these factual matters.
Indeed as he said in his evidence that would be counterproductive; he wishes
to create “grey” areas not black and white. He simply needs therefore a
mystery and a series of unanswered questions. He can do that without deep
research and that he has done. As he has taken matters at a general and low
level of abstraction and he has only taken ideas and facts without any of
the architecture (if any) he has done nothing wrong. It would be quite wrong
if fictional writers were to have their writings pored over in the way DVC
has been pored over in this case by authors of pretend historical books to
make an allegation of infringement of copyright. I accept that if that was
allowed to happen it would have a serious impact on writing. This case
whatever its result would not have that impact in my view. However cases can
be used for improper purposes.
Amy
Thanks, Dean. I was being over-cautious because I was aware I didn’t know the issues. But my store was going to be a particular kind of business – say, ‘Bloggs & Sons’, and I saw what looked like a tiny bike-repair shop in another country with the same name, that couldn’t possibly have been confused with my store, and even then didn’t know if there could be some sort of issue. I think I have been cautious to the point of paranoia!
dwsmith
Paranoia in this instance, is better. Just use common sense and as C.E. said, keep your notes. One of the reasons Kris and I have so many file cabinets full of files for each story and novel. I know, a pain, but a safe pain.
Kate Pavelle
I take it you keep notes only for those things you actually researched? Suppose you just made it up. Or suppose I came up with a sci fi concept, which has probably been done at some point. Should I annotate that I came up with it and date it in a research document? This is a new idea. I’m no stranger to keeping a research lab notebook, but keeping “defensive notes” in case of fiction has never occurred to me, precisely because it’s fiction. Yet, upon consideration, both lab notes and fiction research notes document an IP creation process.
Now if I can only make it sound less like outlining, I’ll be perfectly happy to do it (outlining kills my stories.) I’ll try this and see.
dwsmith
Kate, please go read the copyright handbook. You will see there that ideas are not protected in any fashion and neither are general plots. Only thing that is protected is your expression, meaning how you write the story, how you put the words on the page.