Re: will everyone concerned about copyright please read this

On Wed, September 21, 2011 5:16 am, Brenna Lyons wrote:

>> 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?
>>
>
> Still, that leaves you with publicly proclaiming every singe one as
> trademarked...and all the crap that comes with it. It's not that I'm
> unfamiliar with this process, but I've seen how it plays out, and
> it's not pretty, thanks. From what I've heard from legal counsel,
> it's NOT sufficient to simply put that trademark line in the books.
> Were it so, life would be much easier.

Of all the issues in this thread, this one should be easiest to verify. 
In my brief practice I never dealt with an intellectual property case, 
and my involvement in business competition cases was (regrettably) 
limited. (Trademarks and trademark enforcement actually fall into the 
category of "tortious interference with business relations" and not 
intellectual property.) I no longer have easy access to a law library, 
and in any case no one is paying me to do the research. But based upon 
my recollection from law school and a cursory internet search, it 
appears to me that not only is a trademark line in your book sufficient, 
it is /more/ than is required.

Interestingly, Wikipedia has the best single line summary of the
purpose for trademarks that I think I have ever seen: "a distinctive
sign or indicator used by an individual, business organization, or other
legal entity to identify that the products or services to consumers with
which the trademark appears originate from a unique source, and to
distinguish its products or services from those of other entities."

Trademarks are acquired through use, and in no other way. The very fact 
that you have created a character, and published a book about him, seems 
to me to be incontrovertible evidence that you intended to claim a 
trademark in that character. Every time a consumer reads about 
"Commander Aleeks Daahn" she or he should know that "this is a work that 
originates from Brenna Lyons, and none other." This is a feature (and in 
this discussion perhaps /the/ salient feature) of trademark law that can 
only be approximated in copyright.

>> To my knowledge, trademarks never expire, so long as they continue
>>  to be actively used to identify a specific tradesperson.
>
> They can be declared "abandoned." I'm not fully conversant with what
> causes this. I know you can elect to, but I also know it can be
> considered abandoned if, I believe, the company has been out of
> business for X years and other variables apply. So, what happens if
> the author dies? Does that start the clock for "out of business?" I'm
> not a trademark lawyer, so I don't know how it works, per se. Never
> thought to ask that particular question.

While it may sound like a tautology, trademarks are deemed abandoned
when they are, in fact, abandoned. They exists until some period of time
goes by (typically 3-5 years) after they are no longer being exploited
by you, your heirs, or assigns. So once your books have been out of
print and unavailable for, say, 5 years, and all of the companies you
have assigned rights to stop selling their products for that same
period, and there will be no confusion in the market place if someone 
else uses your "brand," someone else can step in and make use of that 
trademark. (Of course, they can't use it to create derivative works of 
your books, as that is prohibited by copyright law).

And if no one steps in to claim your abandoned trademark, there's no
reason you, your heirs, or assigns can't revive that trademark by simply
beginning to exploit it again; the loss is not necessarily permanent.

[snip]

> And I still fail to see how this is better than copyright. You'll
> have to work harder to prove that to me.

The purpose of trademark law is to ensure that certain words, phrases
and signs, when associated with the work product of a legal entity,
cannot be used in such a way as to confuse a consumer as to its source.
It is intended to prevent me from exploiting the good will that you have
created.

Copyright is intended to encourage you to write a book by promising that
once you have done so you will have a short-term monopoly on its
publication, and upon the publication of its "derivative works," which 
you may then exploit to your advantage.

Now the "derivative work" term in copyright law is problematic, and
remains largely undefined. The "derivative work" protection was not a
part of U.S. copyright law until the legislation of 1976, which is
practically yesterday in a legal time frame. So far, very few cases have
attempted to define the exact parameters of the attributes of a 
"derivative work."

However, courts are very reluctant to allow sweeping changes to the
existing course of the law, even in the face of statutory language. I 
have read cases where courts have essentially interpreted a statute out 
of existence because it was so far out of sync with existing legal 
tradition. Even today statutes and court cases maintain the 
idea/expression dichotomy: that while copyright law protects the 
expression of an idea, it does not protect the idea itself. And the 
idea/expression dichotomy is one of the most firmly entrenched 
traditions in copyright law.

According to the U.S. Copyright Circular 14, a derivative work is "one
that is primarily a new work but incorporates some previously published
material.... Titles, short phrases, and format, for example, are not
copyrightable." Unless a derivative work includes substantial material
that has been previously published, I wouldn't count on copyright law to
protect a "derivative work" that is not a restatement of a previous work 
but only an extension of previously published situations and ideas.

Based upon these considerations, and other explanatory material I have
read, I believe that a movie version of a book /would/ be considered a
derivative work, but a sequel, or fan fiction, would not, as they do not
incorporate previously published material.

So, if you're trying to profit from publication of a work, you want to
turn to copyright law. If you're trying to profit from the brand created
by the publication of a work, turn to trademark.

On the other hand, I'm not necessarily trying to prove anything to you.
You are a grown woman, who no doubt has her own counsel, and who is
willing to accept responsibility for her own decisions. I'm more
interested in raising these issues in a public forum where at least some
people may come to the realization that copyright is not the Swiss army
knife of commercial writing, and will explore other, more productive,
avenues of achieving their goals. I don't even care if /no one/ accepts
my analysis if only they take the time to do the research, as I am
confident if one approaches the issue without preconceptions he or she
will arrive at the same conclusions I have.

>> 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.
>
> While I find your sarcasm rude (probably because I am currently
> discussing gaming rights for two of my worlds, which may admittedly
> be coincidence that you were not aware of), I will concede that the
> gaming is slightly different than the novel version.

I'm sorry if you took offense at my remarks; they were not intended to
cast any aspersions. But I still stand by my point: if what you're
trying to profit from is your "brand," copyright protections are limited
and illusory. You need to be protecting your /trademarks/.


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