Re: Re: will everyone concerned about copyright please read this

On 9/20/2011 3:18 PM, Brenna Lyons wrote:
> On Tue, Sep 20, 2011 at 4:50 PM, Lee Passey<[email protected]>  wrote:
>
>> **
>>
>>
>> On Tue, September 20, 2011 2:02 pm, Brenna Lyons wrote:
>>
>>> If an author creates a world and
>>> characters, he or she may still be writing in that world 20 years
>>> later. He or she may be setting up gaming rights or movie rights near
>>> the end of that time period, based on the audience built over decades
>>> of writing in it. ... writers often continue to work in the created world,
>>> with the same or connected characters, etc.
>> Why can these concerns not be addressed by proper application of trademark
>> law? There are lots of tools in the law's toolbelt -- its seems a bit
>> ineffective to me to insist on using a crescent wrench to hammer on this
>> particular nail.
>>
> Trademark what? Each individual world term, main character name, list of
> alien laws, etc.? Do you have any concept how expensive and daunting that
> would be?

Yes, I think I do. If I recall my coursework correctly, trademarks are 
established through use, not registration. In fact, if you register a 
trademark and then do not use it to promote or identify your trade, the 
registration has no effect. Moreover, registration is not a prerequisite 
to a valid trademark. There /are/ some advantages to Federal 
registration, but I don't think any of them are applicable here.

I think it is actually more common for trademark /not/ to be registered 
than to /be/ registered. Look around you. Every time you see a little 
(TM) what you're seeing is someone saying "I claim this word or phrase 
as my trademark, but I probably haven't registered it." The circle(R) 
(®) means "I've registered this trademark." Which do you think is more 
common?

My recollection is a little fuzzy on this, but I don't think you even 
have to mark a trademark or trade name as such. If you use a word or 
phrase in such a way that it makes it clear that it /is/ a trademark, 
that is sufficient. Check with your own counsel, but I believe that if 
you added a phrase in your book to the effect that "all invented names 
and situations in this book are trademarks of Brenna Lyons," that that 
would be sufficient to claim a trademark in all of those things.

Now of course a /claim/ of trademark does not automatically give you 
one. To enforce a claim you must show that someone else's use is likely 
to cause confusion in the market place, and that you were the first in 
the market. If a name is purely descriptive "e.g. Black Pots" it doesn't 
carry much strength. If it is completely fanciful "e.g. Cortugny Pots" 
it is a very strong trademark.

This "confusion in the market place" test is one of the reasons that, 
for your purposes, trademark is probably a better strategy than 
copyright. No matter how hard she tries, J.K. Rowling cannot copyright 
the name Harry Potter. The names are common, and putting them together 
surely does not rise to the level of creativity required of copyright. 
Harry Potter as the name for a boy wizard is an idea, not an expression, 
and is therefore not copyrightable. But Harry Potter as the name for a 
boy wizard is clearly trademarked as there would be confusion in the 
market place if anyone else tried to use it. What's more, some other 
name which is similar is also protected by the trade mark if it is 
similar enough to cause confusion in the marketplace. So J.K. might also 
be able to stop the use of "Henry Peters, boy wizard" or perhaps even 
"Henrietta Porter, girl wizard."

To my knowledge, trademarks never expire, so long as they continue to be 
actively used to identify a specific tradesperson.

If I were counsel for that gaming company that is creating a game based 
on your Great American Novel, I'd be counseling them very hard to get an 
assignment of all your trademarks, as from a business perspective they 
are far more valuable that any copyrights. If I were your counsel I 
would recommend that you stick to your story that an assignment of 
copyright is the only thing they need, because from a business 
perspective the trademarks are far more valuable, and you want to keep 
us much value for yourself as you can.



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