IP Jungle Survival Guide: Copyrights and Trademarks In the Wild (Part 2)

This is the second post in an ill-defined series on legal matters pertaining to intellectual property creation, development, and defense. Please read our intro post for back-story on why and, most importantly, some disclaimers.

The other day we dove into some of the basic ins and outs of copyright law and how it particularly relates to creating work for others, or hiring others to create work for you, or how it may make your head explode if you try to read legal filings about Superman. I know it was exceptionally exciting reading and that you can’t wait to get to trademark law, so far be it from me to keep you waiting. Though the copyright Bowie knife is arguably your most important protection as a creator in the IP jungle (since it’s common law and covers your actual ideas and work), trademark is kind of like your fishing rig; it’s quite useful, fairly optional, and wow, does it demand a lot of maintenance.

Trademark: Pay Attention and It’ll Help You Out In the Long Run

Trademark protects logos, nomenclature, and any other marks that you might use in the course of doing business with your copyright-protected creative work, and it only works if you actively register those marks with the government.

You also have to use them; if someone else comes along and establishes a market presence with your marks while you were letting them sit in your basement unseen, a judge could reasonably decide that the marks are more legitimately theirs by right. (This happened when the Los Angeles Dodgers tried to claim protection for the Brooklyn Dodgers trademark they obtained when they bought the team in the ’50s; judge wasn’t even having that.) This concept is called “abandonment” and it has many IP-farm trademark-holders in a constant state of panic. More on this below.

Of course, like copyright, the marks you want to protect have to be unique and not under someone else’s control or part of common usage. This is partly common sense (no, you shouldn’t try to trademark “Luke Skywalker” or “water bottle” just to see what happens) but it’s also a legitimate matter of legal dispute. The word “thermos” is generally used to describe any food container that keeps things warm or cold, so it was legally determined to be not unique enough for Thermos L.L.C. to claim trademark protection. Failure to police your trademarks (actually, that should be “failure to police” since it’s another legal concept) can sometimes result in your marks becoming generic and therefore at risk of losing their protection.

Plus, you’ve got to make sure your trademarks are registered separately in every individual industry in which you plan to use them, and then you have to go ahead and actually use them. So, even if Thermos did hold the trademark for food and beverage containers, they likely don’t have one for books and magazines, which means that you can write a series of fantasy novels set in the mystical land of Thermos (and if you do, I will pre-order all the hardcovers).

More on the rules and regs as we get into some common trademark misunderstandings:

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IP Jungle Survival Guide: Copyrights and Trademarks in the Wild (Part 1)

This is the first post in an ill-defined series on legal matters pertaining to intellectual property creation, development, and defense. Please read our intro post for back-story on why and, most importantly, some disclaimers.

This month’s resolution to the web of suits and countersuits between Marvel and Ghost Rider co-creator Gary Friedrich has brought to light some deeply rooted misunderstandings of trademark and copyright law. These were given greater voice in this week’s extra-legal conflict between artist Sean Murphy and Marvel. (I won’t recap them here, but you can follow those links for nicely succinct summaries.) Both instances involved disputes over what copyright and trademark protection affords so they serve as instructive examples of these legal intricacies, not the least of which is a pervasive confusion over the differences between the two.

Shall we do some defining? Let’s. Copyright protects creative work and its author, while trademark protects the logos, brand names, and other marks used by a business in the course of selling that material (thus the “trade” part.) The character and idea of Superman is copyrighted and, depending on which judge or lawyer you are, it contains several copyright-protected elements like the name of the planet he’s from, the newspaper he works for, and the villains he fights. The symbol on his chest, however, is a trademark, as it’s used to sell merchandise. So is the logo on the covers of his comic books. These two protections have different lifespans and rules for keeping them active, and they don’t have to exist simultaneously. For instance, if DC let their Superman trademark registrations expire but the copyright protection was still active, you or I could publish a non-Superman related book using those trademarks. (Not sure what that would be — super-gardening?) If their copyright expired but the trademark did not, the converse would be true: you or I could publish stories about Superman but without those long-established symbols and logos.

So what does this mean for you, brave author? Well, for one, it’s worth knowing that the laws governing both of these protections favor you. The law makes it difficult for a challenger to wrest control of your creative work away from you and, provided that you’ve kept up your paperwork, it’s really difficult for a challenger to wrest control of the marks you’ve used to establish a presence in the marketplace. America is great that way — we don’t want business interrupted, and we especially don’t want authors to stop creating. But there’s still some stuff you have to do and just, well, know about. Since copyright is so straightforward, we’ll start there.

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IP Jungle Survival Guide

Gijon Mili / Stan Wayman / © Time Inc.

If this little pocket of humanity we inhabit that we like to call “the literary creative industry” were a dinner party, the main topic of conversation right now would be intellectual property. What a boring dinner conversation! you’re probably thinking, and you would be right if the talk was limited to lawyers and their legal-ish lawyer-speak and  hypothetical questions like an endless loop of the last scene of The People Vs. Larry Flynt. While “intellectual property” as a legal concept sounds stale and corporate, when you reconsider it to mean “all the things I create while I hunch over my drawing table and writing desk all weekend” it takes on new urgency.

Recent flare-ups on the subject in the comics world have brought about a raft of new ideas and “huh, I should have thought of that” moments, along with an expected raft of old-guard defensiveness and misunderstandings of the facts. I don’t think the flare-ups are evidence of any kind of centralized movement or counter-movement taking place in the field of creative property development, only a coincidental closeness of unrelated court cases and controversial IP development decisions. However, I think the result of these coincidences will be old-school consciousness-raising: the events under discussion will remain static but the future of creators’ relationships with their chosen avenues of production will be better informed, if not completely revolutionized. We’ve written here before about technology’s gift to publishing: an explosion of content and audience expansion that any other industry would envy, even as the traditional structures for introducing author to audience change. The same goes for IP ownership and development: the old way of centralizing the creative works of many into a corporate IP exploitation engine was yesterday. As it changes, those properties and their engines will remain in place while the next generation develops new multi-partner models that will give us an explosion of fun new ideas. We’re already seeing it in the projects we’re hired to work on here at Letter Better, and we can’t wait to see more.

In an effort to help out where we can, we’re going to run a series of posts on the subject of IP (again, just shorthand for “stuff you spend your time making”) with no planned schedule or frequency but across a variety of topics that seem to be of interest to creators. These are all informed by our professional experience dealing with these topics, not just things we’ve overheard in bars. We’ll devote a separate series of posts to the topic of things we’ve overheard in bars.

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