INTRODUCTION…
For years and years, when asked about trademarks by fiction writers, I flat told them to not worry about it. The reason I said that is simple: Fiction writers can’t seem to understand copyright. Trademark is another level of protection for different reasons completely.
And far, far, far more complex then copyright.
Fiction writers have this wonderful way of being sincere about learning copyright and then never finding the time. They write stories and novels for years and years and never once understand where the money comes from or what they have created. And by doing that, of course, they leave more money than they make on the table, unnoticed.
Just can’t find the time, you know? Got to finish that next novel, you know? I’ll get to learning that next week. (As if copyright can be learned in one week. Yeah.)
So for years I harped and climbed on soap boxes (fell off a few) and even did an online workshop called The Magic Bakery (and wrote a book with the same title) where I stretched a poor metaphor far beyond the breaking point in an attempt to make fiction writers understand the value of what they were creating.
So exactly what are writers creating when they commit a story or novel to a form?
An Intellectual Property, that’s what. IP for short.
And you don’t sell IP, you license it.
Notice that IP has the word “property” in it. Yup, under the laws of just about every country on the planet, when you create a story or novel and commit it to a form, you have created a property. And that form is what you license and that form is what has protections under copyright law.
Why would something that you think has no value, like that short story you couldn’t get into a magazine, be considered to have value and be protected under law? Because the law is smarter than you are about your own work, to put it bluntly. You created IP, that IP has value worth protecting under the law.
That’s just about as basic and bare-bones as I can say it.
That is how I am going to try to write most of this book about trademark. Surface and bare-bones. I will not get down into the weeds, I promise. In fact, I am flat not giving any legal advice in this book at all. My point is to say, “Hey, go learn this and look here and here is how this stuff can help you as a fiction writer.”
So got that? I am not an attorney and not a bit of this is legal advice in any fashion. Learn this stuff and do your own homework and talk to an attorney if you feel you need to.
IMPORTANT DETAIL…
First, my suggestion is that you need two books in your life, not just electronic books, but in paper so you can mark them up and fold corners and put bookmarks in them.
First is:
The Copyright Handbook by Stephen Fishman. You can get it from Nolo Press.
Second is:
Trademark by Fishman. Also get it from Nolo Press.
Both of these books are for writers and reside next to this computer at all times. And I will be quoting at times from the trademark book here.
Trademark is another form of protecting or even creating IP.
IMPORTANT DETAILS…
In this introduction, I have another task at hand. I need to explain as clearly as I can, even for those who have yet to find the time to learn copyright, the difference between copyright and trademark.
Copyright protection for fiction writers happens automatically the moment the writer fixes words in a tangible form. Typed, scrawled in a notebook, talked into a recorder, makes no difference. It is put into a form, and thus protected.
Trademark law covers basically what copyright does not cover. Names, specific word, slogan, and so on that are used to identify a certain product or service. There are basically two main areas of trademark. Marks that identify goods or products and marks that identify a service, known as service marks.
There are two others, but for this book talking to fiction writers, I am only going to be dealing with the first area. If you feel you need a service mark, a certification mark, or a collective mark, call an attorney.
LAST INTRODUCTION DETAIL…
Copyright can not be lost until it drops into the public domain 70 years after the author’s death. Copyright happens automatically when you write and only you, with a signature, can sign away that right to another person.
Copyright has a massive number of ways it can be broken up and licensed. Thus my Magic Pie in my Magic Bakery metaphor. Copyright can make you a ton of money if you understand licensing.
Trademark, on the other hand, can be lost if you do not use it and defend it. There are legal details and a few exceptions, of course, but generally, that is the rule.
In the United States, copyright is in our Constitution as a basic right. Trademark is not a right and is governed in this country by the Federal Lanham Act which has been amended a few times. Also state laws govern trademark uses. And even more than those two, common law (meaning decided by courts) decides a lot of what the law is.
Yup, very complex. And since we are international writers, it gets worse.
Every country around the world has trademark protections. As you get into more and more licensing as a fiction writer and fiction publisher, you might want to look up your own home country’s trademark rules and protections.
So that is about as basic as I can get in this introduction. In this book I hope to hit on a bunch of areas in the complex web of trademark laws that might help fiction writers.
But simply put, most trademark rules do not apply to us.
And much of this we can do ourselves if we need to. And other times I will flat suggest you get an attorney who specializes in trademark law.
However, in this new world of licensing, learning some aspects of trademark is going to become critical, right along with learning copyright. So while you need to know all copyright factors, in trademark, as a fiction writer, the scope can be narrowed some.
That is what this book will attempt to do and help fiction writers understand at least the basics of trademark as it applies to them.
As I said, I used to tell fiction writers to not bother with trademark. Now I am saying to learn some basics, but don’t go flying off the handle and thinking you need to trademark everything in your recent book, including your main character’s mother’s dog’s name.
Read on before you do that. Your checkbook will be grateful.
I had some run-in with trademarks in a business venture that I chose to kill later. The international stuff is hairy – for regional products that don’t cross your U.S. state lines, trademark is fairly straighforward and aside from the Trademark Handbook, the uspto.gov site has a lot of FAQ and guidelines on it. Also… you can email or call them with concrete questions, and the people on the other side will be helpful to the best of their ability. For us, the “crosses the state lines” turns this into a different kettle of fish. This will be interesting and potentially costly. Business decisions abound: Do I trademark my corporate logo, every series, some series only, etc.
Stragetically speaking, what will the IP support in terms of financial maintenance for us low-selling authors?
The “maintain and defend” requires a level of background hum of activity you can point to and say “Look, we’re doing all that” in case an issue comes up.
I’m really looking forward to learning more.
I’ll get there. This was just the introduction. (grin)
As we’ve seen online, it’s possible to go overboard with trademark protection, so it’s good to learn the goal of trademarking something and where the acceptable boundaries lay.
Copyright under the current law is pretty easy to learn when it comes to protecting your original work. It becomes more difficult when you’re dealing with public domain material, or deciding what constitutes a “fair use” (legal term) of copyrighted material.
But the complexity of the law is relevant. When I consulted with an attorney about whether a particular novel was in the public domain, he mentioned that copyright law is absurdly easy to learn … compared to patent law.
Yup, copyright law is very, very simple to learn 95% of what writers will need to make more money with their IP. And pretty uniform around the world thanks to the Berne agreement in 1890s. And now the Stanford data base has everything about what is in or out of copyright.
But in general to everyone, extreme caution on using anyone else’s once protected work just because you think it is in the public domain. Extreme caution.