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Copyright and Trademark Law
May. 12th, 2018 11:32 amHave run into two copyright and trademark issues this week. The IP attorney in me is jumping up and down with glee, while the writer in me is just annoyed. I've always found Intellectual Property Law headache inducing. So happy to be away from it.
A. Co-worker asked me a question about Intellectual Property Language yesterday.
She wanted to know if a company that had been collecting and monitoring our data had ownership of the historical data or data, if ownership isn't precisely stated in the contract. I said no. It's our data. They can only have ownership of it if they state it in the contract and state that they are doing something with it, such as changing it in some way.
I was able to get ownership of electronic scans of journal and periodical content for a library reference publishing company, based on the fact that the company in question had scanned and manipulated the data into a new format -- ASCC Text. Since the data had been changed, and the company had expended resources to change it, the company owned the resulting product.
B. Fell down the rabbit hole of #cockygate. Why? I'm an independently published writer, and so are various family members, and a former copyright/trademark specialist who registered trademarks, sent Cease and Desist Letters, and obtained rights to content for a Library Reference Publishing Company aka Evil Company (which is now dead, because *karma*cough*karma*).
So this case equally amuses and annoys me.
Anyhow some useful links:
1. Courtney Milan, former Corporate Lawyer turned Romance Novelist Summarizes Cockygate
The gist? A nitwit self-published romance novelist who had written a series entitled "The Cocker Brothers" with each novel in the series having the word "Cocky" featured in the title, decided to trademark the series "Cocker Brothers" and the word "cocky" in Northwell font. The copyright for the font is owned by Set Sail - a UK font design company. Under Northwell's terms and conditions -- it is considered an infringement of their copyright on the font to trademark anything featuring their font and in violation of the contract. And US Copyright, Patent and Trademark Law is rather funky -- in that it provides you with the means of stopping people from using something, but doesn't necessarily give you an independent right to use it. (That's why it is Headache Inducing).
I used to register Trademarks for Wilson. And we had hard ones to register. I had to make them distinctive. Because I can't trademark "Biography", I can Trademark "HW Wilson's Biography" or I can trademark it in a specific style, if I own the copyright on that style. That's how "Apple" trademarked Apple -- they could only trademark it as a logo for their computers, nothing else. And they had to prove there were no existing companies or properties that had their name, and it was unique to their brand. They can't copyright or trademark the word "computer" -- it's not unique.
"Microsoft" can trademark that word since it is unique, but not "Software".
The test for copyright and trademark includes uniqueness, distinctive, no pre-existing properties or claims, no one else has ever used it, and stands out.
Cocky -- doesn't fit that criteria in regards to romance novels or any novels. It's commonly used. And it doesn't in regards to Romance Novels. Now if she had done it in regards to a computer or software -- that would have been different.
2. Why did the US Copyright & Trademark Office accept the filing?
Smart Bitches.com explains all of that Here
They didn't have to. I know the entity is understaffed and someone probably thought it was funny. I also know it can be challenged and invalidated. What a lot of amateur lawyers don't know is filing copyright or trademark with the office is rather meaningless until it is defended in court. Someone can always come along and challenge your claim and get it invalidated. Also, courts don't always accept it -- they can challenge it.
Anyhow, a ferocious and bored IP Attorney and Litigator has independently stepped up to the plate and filed a petition with the US Copyright and Trademark Office to get the nitwit writer's TM invalidated. Meanwhile the Romance Writer's Association has entered the fray and is defending the poor writers that this nitwit has threatened. They've contacted Amazon and informed them that they should suspend any removals of content since the TM will most likely be invalidated soon -- or to wait until the Trademark Office makes a determination. They've also contacted the owner of the font to determine if she had the right to use it in this way -- she doesn't. (Whoops). Meanwhile various writers are changing titles to include the word cocky, or buying up every book but hers that has cocky in the title.
In short, this nitwit underestimated the Romance Writers Association, Indie Writers, and the fact that a lot of romance writers are former lawyers and have social media friends that support them.
3. The nitwit much like Doofus Trump, is claiming cyberbulling -- after doing all this. Because she got attacked for it. Folks? If you put negative shit out there, and bully people, and hurt people -- don't be surprised if you end up getting attacked. Karma.
Sigh. She gives independent publishing and romance writers a bad name. Although I've seen this silliness in fandom too. One idiotic fan tried to copyright and trademark her fanfic once -- and got slaughtered by the original holders of the copyright, not to mention by fellow fans. Another claimed that their plots were being plagiarized -- we're talking fanfic. First there is no such thing as an original plot -- you can't copyright it. What makes it distinctive is the world, setting, characters, and how you wrote it. Second, you are writing fanfic -- which is using someone else's world, characters, and setting and jumping off of their plots --- without their permission. In short? You don't really have any legal grounds in this. And plagiarism is harder to prove than you might think.
A. Co-worker asked me a question about Intellectual Property Language yesterday.
She wanted to know if a company that had been collecting and monitoring our data had ownership of the historical data or data, if ownership isn't precisely stated in the contract. I said no. It's our data. They can only have ownership of it if they state it in the contract and state that they are doing something with it, such as changing it in some way.
I was able to get ownership of electronic scans of journal and periodical content for a library reference publishing company, based on the fact that the company in question had scanned and manipulated the data into a new format -- ASCC Text. Since the data had been changed, and the company had expended resources to change it, the company owned the resulting product.
B. Fell down the rabbit hole of #cockygate. Why? I'm an independently published writer, and so are various family members, and a former copyright/trademark specialist who registered trademarks, sent Cease and Desist Letters, and obtained rights to content for a Library Reference Publishing Company aka Evil Company (which is now dead, because *karma*cough*karma*).
So this case equally amuses and annoys me.
Anyhow some useful links:
1. Courtney Milan, former Corporate Lawyer turned Romance Novelist Summarizes Cockygate
The gist? A nitwit self-published romance novelist who had written a series entitled "The Cocker Brothers" with each novel in the series having the word "Cocky" featured in the title, decided to trademark the series "Cocker Brothers" and the word "cocky" in Northwell font. The copyright for the font is owned by Set Sail - a UK font design company. Under Northwell's terms and conditions -- it is considered an infringement of their copyright on the font to trademark anything featuring their font and in violation of the contract. And US Copyright, Patent and Trademark Law is rather funky -- in that it provides you with the means of stopping people from using something, but doesn't necessarily give you an independent right to use it. (That's why it is Headache Inducing).
I used to register Trademarks for Wilson. And we had hard ones to register. I had to make them distinctive. Because I can't trademark "Biography", I can Trademark "HW Wilson's Biography" or I can trademark it in a specific style, if I own the copyright on that style. That's how "Apple" trademarked Apple -- they could only trademark it as a logo for their computers, nothing else. And they had to prove there were no existing companies or properties that had their name, and it was unique to their brand. They can't copyright or trademark the word "computer" -- it's not unique.
"Microsoft" can trademark that word since it is unique, but not "Software".
The test for copyright and trademark includes uniqueness, distinctive, no pre-existing properties or claims, no one else has ever used it, and stands out.
Cocky -- doesn't fit that criteria in regards to romance novels or any novels. It's commonly used. And it doesn't in regards to Romance Novels. Now if she had done it in regards to a computer or software -- that would have been different.
2. Why did the US Copyright & Trademark Office accept the filing?
Smart Bitches.com explains all of that Here
They didn't have to. I know the entity is understaffed and someone probably thought it was funny. I also know it can be challenged and invalidated. What a lot of amateur lawyers don't know is filing copyright or trademark with the office is rather meaningless until it is defended in court. Someone can always come along and challenge your claim and get it invalidated. Also, courts don't always accept it -- they can challenge it.
Anyhow, a ferocious and bored IP Attorney and Litigator has independently stepped up to the plate and filed a petition with the US Copyright and Trademark Office to get the nitwit writer's TM invalidated. Meanwhile the Romance Writer's Association has entered the fray and is defending the poor writers that this nitwit has threatened. They've contacted Amazon and informed them that they should suspend any removals of content since the TM will most likely be invalidated soon -- or to wait until the Trademark Office makes a determination. They've also contacted the owner of the font to determine if she had the right to use it in this way -- she doesn't. (Whoops). Meanwhile various writers are changing titles to include the word cocky, or buying up every book but hers that has cocky in the title.
In short, this nitwit underestimated the Romance Writers Association, Indie Writers, and the fact that a lot of romance writers are former lawyers and have social media friends that support them.
3. The nitwit much like Doofus Trump, is claiming cyberbulling -- after doing all this. Because she got attacked for it. Folks? If you put negative shit out there, and bully people, and hurt people -- don't be surprised if you end up getting attacked. Karma.
Sigh. She gives independent publishing and romance writers a bad name. Although I've seen this silliness in fandom too. One idiotic fan tried to copyright and trademark her fanfic once -- and got slaughtered by the original holders of the copyright, not to mention by fellow fans. Another claimed that their plots were being plagiarized -- we're talking fanfic. First there is no such thing as an original plot -- you can't copyright it. What makes it distinctive is the world, setting, characters, and how you wrote it. Second, you are writing fanfic -- which is using someone else's world, characters, and setting and jumping off of their plots --- without their permission. In short? You don't really have any legal grounds in this. And plagiarism is harder to prove than you might think.