Writer’s Guide to Copyright and Trademark Infringement (Episode 1: A general overview)

Rocko and Chainsaw jump into the truck. As Rocko turns the key, the stereo blares… um, Twinkle Twinkle Little Star? That one’s gotta be public domain, right?

We’re supposed to write what we know, and a lot of us (myself included) write about everyday life. Well, a much cooler version of everyday life, but, still, life here in Anytown USA. If you write about life in the Antheria Quadrant or a magical realm, you can probably skip this post (unless you have a guy named Darth who has a Death Star in your Quadrant or your magical realm is called Middle Earth). Even then, this post isn’t about plagiarism,

Intellectual Property and Writing is a complicated subject. Actually, it’s a whole bunch of complicated overlapping, interlocking subjects. The kind of subjects that people who went to law school, passed the bar exam, and practiced law in this area for a decade or two still go to continuing education classes on every year. I wish I could just fire off a douchey top ten list that told you how to avoid trouble, but it isn’t that easy. I plan to provide just such a list in a few days, but trust me when I say a list, standing alone, will do nearly as much harm as good. It’s really worth taking a few minutes to understand a little bit about the basic framework you’re going to be operating in.

“We’re Living in a Material World”^℗

One of the issues with writing about life in a consumer society (which, writing satire, is one of the things I write about) is the fact that our society loves to brand the things we consume. For every person who says, “Meet me at that independent coffee shop on 36^th Street,” a couple hundred meet at Starbucks^®. We drink Coke^® or Pepsi^®. We like Big Macs^® and throw Frisbees®, not flying discs. And those are just trademarks. The little ® means they are registered trademarks, and have been registered with the U.S. Patent and Trademark Office.

Then we have copyrighted materials. Your protagonist may want to start singing Ding Dong the Witch is Dead^℗ the minute his wife leaves the house, but can he? When she wants to read love poetry from the balcony, can it be Echo^© by Carol Ann Duffy or do you have to become a poet, thereby forcing her (in my case) to read insipid poetry at best? If your character was a child of the 1970s and a science fiction geek, can her favorite movie still be Star Wars (which is both a ® and a ©)? The little © (or, in the case of sound recordings, the little ℗) says the author has the rights to the material and you’ve been warned.

So what the hell? We obviously can’t have our characters listen to Twinkle Twinkle when it needs to be Born to be Wild, and all of those little ©s ®s and ℗s make our prose look like a list of side effects from a treatment for erectile dysfunction. And, unless my books a huge bestseller, nobody’s even going to bother worrying about infringement in my stuff anyway, right?

This is the most important thing I’m going to say in this post. Are you ready? Ok, here goes: WRONG.

The unfortunate fact is, once someone has intellectual property protection (whether in the form of patent, copyright, or trademark), he or she can lose that protection by allowing the protected property to become “public domain.” The classic example of this is the thing you use on the fly of your pants (and the door to your tent, if you camp, and the way you close up your windbreaker). When enough people generically refer to anything with linking rows of interlocking teeth as a zipper (without permission or acknowledgment of the mark), it becomes “genericised” and the owner loses the mark. This happened with aspirin in the US, to Friedrich Bayer & Co. –the same company that had the balls to trademark heroin. They lost that one the same way. Owners of copyrighted materials do not face the same kind of pressure to protect their works, but can still lose the ability to sue under broader doctrines (estoppel, latches, and a bunch of other Latin words I don’t have time to go into).

Because of that copyright and trademark holders have a legitimate reason to make sure we don’t improperly use their material, even if we’re not making a dime doing it.

That does not, however, mean we can’t use the materials at all. Not even close. What it means is we can only use the materials either (a) with permission from the copyright/trademark owner or (b) under the fair use exception (or another exception, but those are rarely as important in this context).

Yay, he’s finally talking about fair use. I should have skipped all the boring shit. I found the part with the answer!

Sorry, but no. I’m going to give you my first ever Michael J. McDonagh Blog News Update: In an astonishing coincidence, since I was planning to write this today, anyway, this happens to be the day the biggest fair use decision of the decade, possibly my lifetime, was handed down. In The Authors Guild, Inc. v. Google, Inc., the court sided against the authors (boo) and in favor of Google (boo).

Except, with respect to this post, we kinda wanted that, because at the moment we’re wondering how far we can push the bounds of using other peoples stuff. (Yay?) If you’re Stephen King or Dan Brown you’re probably bummed (and bored as shit, if you’re reading my blog, but please, please start posting comments). For me and you, not so much. Plus it’s a District Court decision on summary judgment, it will be appealed, I’d be surprised if it didn’t  get reversed on appeal and there will be an attempt at an appeal to the Supreme Court (where I’d say the odds of the original ruling being affirmed go down even more).

That’s not really the important part. The important part for this post is to understand that both sides spent hundreds of thousands (Plaintiffs) or millions (Google) of dollars hashing through the question of fair use. Until today, nobody was certain how the judge was going to decide. I think there is at least a 50% chance the judge will be reversed on appeal. It took eight years to get to this point, and, as the judge put it, “The sole issue now before the Court is whether Google’s use of the copyrighted works is ‘fair use’ under the copyright laws.”

In other words, the important thing to understand is that “fair use” can be a really fucking complex topic. Or, as the Google Court said it, “The determination of fair use is an open-ended and context-sensitive inquiry, thus the fair use doctrine calls for “case-by-case analysis[.]” That, by the way, is how federal judges say, “really fucking complex topic.”

 

Tomorrow I’ll get into the four-part fair use test and how to avoid infringement, I promise. But I think jumping right to that would be a huge disservice to the people who read my blog. Since you’re presumably fellow writers, I can’t do that (even though douchey top ten lists drive traffic like no other).

Aside from “this is a really fucking complex topic,” there are two points I want to hammer home from a writer’s perspective:

1)    Don’t let The Man keep you down. Just write the damn book. If everybody is reading The Hours^© at a Starbucks^® and listening to Dylan sing Like a Rolling Stone,^℗ so be it. (And, yes, the registration marks are here purely for comedic effect). At least for the first draft, this isn’t anything to even think about. You shouldn’t have all those adverbs, either, but now’s not the time to worry about them. This is editing stuff, not drafting stuff. It shouldn’t even be on your mind until you’re done writing (and probably revising, since we never know what’s getting cut there until we’re done with surgery).

2)    You need to be about 1,000 times more worried about this if you’re self-publishing, because traditional publishers deal with it all the time. If you’re going the traditional route, you’re probably better off not worrying about it at all (if the changes take anything away from your narrative), and being flexible when you get your editing letter. This is mostly a minefield for people who want to self publish. A cease and desist letter that just tells you to ‘cut it out’ becomes a real problem if you’re sitting on a couple of boxes of POD paperbacks you just shelled out for.

Tomorrow, I’ll explain the four part test for fair use, it’s applicability in both copyright and trademark matters and maybe even provide a douchey top ten list of things you should know. 

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