The Trademark Book
For Fiction Writers…
Remember, I started that book here, did some chapters, promised I would keep going. I even have another chapter or two written.
And that is where it will end.
So why did I stop? Two pretty basic reasons.
First reason is that fiction writers just don’t need it much at all. Fiction writers can’t seem to find the time or energy to learn copyright, what they do need to learn.
And copyright is “See Dick Run” simple compared to trademark. So the lack of need and my discouragement that fiction writers don’t even bother with the basics of IP by learning copyright. No point at all putting out a book on trademark for fiction writers.
Maybe I will get past that issue when licensing is more of a thing for fiction writers, but for now I am just going to talk about trademark in one fashion or another in the Licensing Transition class.
And some in the Shared Worlds Class.
And in the Decade Ahead Class.
And maybe in a future Pop-Up (which no one will sign up for, but what the heck. (grin))
The second reason I am not finishing this short trademark book is simply this: Trademark is depressing.
The only people who make money from trademark are lawyers. Go back and read the first few chapters of the book I posted here to get a glimpse of what I mean.
One of the unpublished chapters is about strength of a mark. And this to writers who think they can trademark a word that we all use. The discussions and amazing lack of thinking in the discussions around that last idiot writer who did that was head shaking.
So I am going to stay focused on trying to come up with ways to help fiction writers understand copyright. Like the Magic Bakery.
Trademark… I am climbing down off that shaky soapbox before I fall off and hurt myself.
If you want to really start to understand the part of IP that is called “Trademark,” go buy Stephen Fishman’s book by the same name. From NoLo Press.
And then put it right beside The Copyright Handbook by Fishman near your computer. You just never know when you might need both.
But do yourself a favor: Learn copyright.
17 Comments
Harvey Stanbrough
Hear hear. When asked whether he read the bible he kept near his bed, General Patton (according to the movie) was reported to have said, “Every goddamn day.” I’m much the same with The Copyright Handbook. One of the best investments I’ve ever made. And the more IP I accumulate and the more my inventory grows, the more necessary it is in a variety of ways.
dwsmith
Yeah, I find it amazing how often I read for the Copyright Handbook and I have a good grasp on this. I still use it.
Maybe I should think about doing a Copyright for Fiction Writers book. From the writer perspective. That might be more useful than Trademark at least.
Harvey Stanbrough
I think that’s a GREAT idea. And Copyright for Fiction Writers is an excellent, evocative title.
J.M. Ney-Grimm
I’d been looking forward to your book on trademark. I fond your blog posts on the topic very helpful. But I’m a writer who re-reads The Copyright Handbook at regular intervals. 😉
Marsha
You did a workshop on copyright (maybe a pop-up?) that I took and I am so happy I did. It’s the underpinning of the writing business. Copyright affects anyone who creates, no matter what they create. I picked up the NoLo Press Copyright Handbook because of that class. It’s an invaluable resource. Out of all my reference books I dig into that one the most often.
Another great resource is IP attorney Katherine Miller Goldman who often posts useful info about what’s going on in the copyright world for creatives. https://creativelawcenter.com/
Kate Pavelle
Do not despair, Dean. What you’re doing does make a difference, and even that cursory view into what a trademark is and is not has saved me a bunch of money in application fees.
It has also allowed me to relax about the whole issue a bit.
Copyright rocks, and I’m exploiting it as much as time allows. Trademark? Not so much. Not yet, and perhaps not ever. Time (and business conditions) will tell.
dwsmith
Thanks, Kate. And exactly right, time and business conditions. I know for a fact that we have a few things we could trademark, such as the business name Pulphouse, which falls into a couple areas. We have been making money with it since 1987, so we have the business side and the first use side. And it is a moderately strong mark.
But I see no reason to jump through the hoops and actually risk losing the name over time by registering a trademark on it. We are more protected now by not registering.
And a whole bunch of people went… What?
Welcome to trademark silliness.
KR 'Kenny' Norris
My Copyright Handbook landed, once again, to the top my reading pile… (as of this morning)
dwsmith
Best way to read the copyright handbook is one chapter at a time. Put it down, let it sit after a chapter, then come back a week later, scan the chapter you read and read one more. Repeat. Then put it right beside your computer so that you can look things up any time a question appears. You can use the trademark book as a reference as well, but far, far more complex.
KR 'Kenny' Norris
Thanks Dean, I’ll start doing that. 🙂
Kristi N.
The question of copyright came up in a FB discussion in regards to fan fiction published for free on an aggregating site. Some writers were using their fiction as a reader magnet to boost their original fiction for sale, and it had been pointed out that such a use was not considered ‘fair’ use because of the commercial aspect (marketing). Those people were quickly assured by the rest of the group that the original copyright owner had initially encouraged fan fiction (in the 90s) and she wouldn’t mind. I didn’t point out that indie publishing didn’t exist at that time, so the possibility of writers boosting their own income using her characters was very small. I backed away from that discussion without bringing up that the writer was not the writer’s estate, and that at some point she or the film studio in possession of the copyright to her characters would start looking at the free fiction as either a part of THEIR copyright or disallow it completely as a threat to their commercial exploitation of the original copyright. Then I read the excellent post by The Passive Voice on not starting copyright battles and realized that there were even more dangers involved. (Sigh.)
Still learning, and hoping that some day I get a better handle on it.
dwsmith
Kristi, you want the best handle on it… Never use anyone else’s work. Hard and fast rule.
Second, never let anyone use your copyright without paying for it and a contract in place. Hard and fast rule.
Pretty simple. Beyond that lies madness and lawyers.
CEP
Kristi, the biggest problem with fan fiction is that it inherently DOES involve trademark. And it’s an ugly and theoretically not-well-developed area. Two points are worth remembering:
(1) That concept that “allowed before, therefore must allow now” is an attempt to apply the trademark concept of “loss through genericness” to copyright. That concept is complete cow manure under the 1976 Act (and international copyright law). Only, under certain rare circumstances possible but almost never seen in reality under the 1909 Act, can failing to defend a copyright against infringement #1 reduce the copyright holder’s rights against another, later infringement. Even then, it would only have limited the remedy — not the liability.
(2) There’s a real irony with trademark issues related to fan fiction. At both extremes — really, really good, and really, really bad — there is significant potential trademark liability regardless of copyright status. Really, really good fan fiction might be treated as an actual substitute for the legitimate (copyright-holder-produced) goods, so that’s an infringement. But really, really bad fan fiction might tarnish the reputation of the legitimate goods, so that’s an infringement — a different one, but a trademark infringement nonetheless (often called “tarnishment” or “dilution,” even though those are at least in theory slightly different things).
And worse yet, you could run into fan fiction purveyors who think they now own something in their fan fiction and use it against the actual copyright holder. The Marion Zimmer Bradley fiasco (in which EVERYONE screwed up, most especially the publisher) is just one, relatively well known, example.
So I advise authors to, if they’re going to do fan fiction, keep it private… and only actually write it out if not doing so leaves some kind of creative block in place. If nothing else, fan fiction that is NOT done with satirical/parodic tools and purposes thoroughly disrespects the original creator, and original creators get plenty of disrespect without adding to it.
dwsmith
Spot on, CEP. Spot on, and thank you.
Kristi N.
Thank you for explaining that—there are several concepts in there I haven’t seen discussed before in the fan fiction worlds and are very important. You’ve given me much more to think about when those discussions do come up in the FB groups.
Lorri Moulton
Dean, I’m interested in both. Thank you for the recommendations!
Filip Wiltgren
I wonder if the idea that “copyright” is “law” and law is complicated is what keeps writers from learning about it.
If so, folks, copyright is simple, really simple. What’s complex is the various types of damage you can do to your career and finances by signing bad contracts. And if you don’t learn copyright, which is easy, you’ll never know when you sign a bad contract.
On a side note, if you want to see an example of a horrible contract, copyright wise, take a look at pretty much any academic publishing (peer reviewed publications) contract.
Not only does the publisher take all copyright in perpetuity (and in some legal systems could sue the researchers at the moment the copyright expires since the researcher signed over the copyright in perpetuity), but researchers have to pay the publisher in order to let readers read what they’ve written (look up “gold open access” if you don’t believe me). How’s that for “money flows towards the writer”?