Monday, May 7, 2018

Like a Cancer Grows #Trademark #WhenAuthorsAttack

The end of last week has been one for the record-books in terms of controversy and angst in the publishing industry, and in particular the Romance industry.

Let me explain in very general and vague terms what's going on, if you haven't heard already, which isn't likely.

In a nutshell, an erotica author has apparently trademark registered a word in relation to her titles and her series and has been sending C&D (cease and desist) letters to other authors with the same word in their title and threatening them with a lawsuit. From what I understand, she personally has been sending them. Not her alleged attorney.

Can she do this?


Well, that's the debate. The fact is she has a trademark registered (that's been confirmed) for both the stylized version of a word and the word itself--which she apparently sees as part of her brand--and she has been sending letters to other authors whose titles she views as infringing on her trademark. She's threatening said authors with legal action if they don't "simply" change their titles--as if simply changing a title is all there is to it. No regard for the fact this also means purchasing new cover art, ISBN numbers, changing out everything on current blogs, websites, social media, destroying all existing print copies, graphics, banners, promotional items and swag the author has invested in that might carry the title in question--the types of materials many authors have already been purchasing and stockpiling for the upcoming conference season. Yeah, it's no "simple" thing.

And whether it would stand up in court or not, authors are being advised (or are simply making the personal decision) to "just" change their titles, plus investing all the time and energy in erasing all evidence of that title from existence as well as destroy all related tangible materials that they've already purchased rather than undergo the expense of a lengthy court battle with this individual.



Needless to say, this has resulted in a huge pushback-backlash flamewar, where a lot of anger, outrage and just plain WTF? is being directed at this author by her peers and many readers (from which she may never recover IMHO).

I'm not going to go into a debate on this particular topic (believe me, there have been the equivalent of novels written on this subject already--most on Twitter and FB) and you can read more on the legal take on this well-written blog but I am going to weigh in on how this could come to light on our doorsteps as SFR authors.

Because this author didn't stop there. Phase II and III is apparently to go after authors who have used the same stock images she used on her covers, claiming they have "copied" her (unoriginal) images that they or their cover designers purchased from a stock image company, and going after authors for using the same character names in their books that she used in her series.

This is making life stressful for other authors because until someone goes to the expense to challenge the trademarks/claims in court and a decision is made as to the legality of the trademark (or the author takes action to withdraw the trademark--not even sure how that works), this is probably going to continue.

And though I think it may blow over pretty quickly due to some other information that has surfaced, it has led to a knee-jerk reaction of other authors scurrying to trademark elements of their work.

Can you imagine if that becomes a trend? Can you imagine having to research a trademark for practically every element of your work? And can you see it eventually bleed over into our little corner of the literary universe, and authors start registering trademarks for, say "space," "stars," "planet," "alien" or "nebula?" That would impact a whole lot of books in our little genre.

For instance, of those books we co-bloggers have published alone:

Inherit the Stars
The Inherited Stars Series
Ghost Planet
Pets in Space 1
Pets in Space 2: Embrace the Romance
Unexpected: An Alien Romance
and possibly even Starheart and StarDog...because 'star.' 

And "character name" infringement, if it goes that far, could stop me from re-publishing the expanded version of Courting Disaster without changing the name of my StarDog, Luna, because Pets in Space 2, which predated this insanity (not that that seems to matter) is now out of print so the expanded reprint would essentially be a "new work." (Not sure on the legalities of that, just my assumptions.)

So this is pretty big, but it could soon get monumental as more and more authors panic and turn the throttle up on self-defense mode, which eventually de-volves into assault mode. This is how peerships break down. This is how an entire industry implodes.

It's serious enough that even RWA has taken note and is requesting anyone who has been threatened by this individual over copyright infringement please contact Carol Ritter. Word is, RWA may be gathering information prior to consulting an IP attorney. In other news, a retired IP attorney (and current author) plans to file a legal challenge to the trademark.

The book industry has always been the sort of business where one author encourages their customers to buy other similar products from other authors. Readers buy lots of books, not just books from one author, and the more we suggest other wonderful titles that they may enjoy reading, the better for everyone--authors, readers and sellers. It's one of the great things about being an author.

As I recently tweeted, my mindset has always been that "A rising tide floats all boats," not "Let's torpedo my peers!" (We all know how that turned out in Hunt for Red October.) IMHO, the entire cooperative spirit could change overnight if this trademarking scourge becomes rampant.

Let's hope that doesn't happen. Let's hope this is squelched before it has a chance to grow like an aggressive cancer. But, really, as a small indie author, I'm feeling pretty powerless right now. Like a leaf in the wind, so to speak. (No trademark infringement intended to the Firefly/Serenity franchise, only flattery for a great phrase.)

Hopefully, like all dark times, this too shall pass....

Please try to have a great week. Really!

8 comments:

  1. What's funny (in a shake-you-head way) is that her first novel's cover is an exact replication of a popular one released the year before. And that as "easy" as it for other authors to change titles and covers, it's absolutely impossible for her to change the [offensive] C*cky Soldier, about Marines.

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    1. I agree, Misa. Quite an irony, isn't it?

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  2. Great article, Laurie. Let's hope this blows over quickly.

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  3. Did you see the story that went around about a contrasting situation, where an author had unintentionally used another, more well-known author's series title and contacted the author basically saying "I did this and I'm not sure what to do"? Essentially the better-known author thought it was great and suggested they promote each other. That's who we really are, and I hope this very confused and short-sighted person doesn't make us forget it.

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  4. Nothing like shooting yourself in the head out of some misguided effort to screw the other guy. As so many have noted, this woman has destroyed her career, and it was all so unnecessary. I’m confident that now that RWA is on it, this nonsense will all go away. Everyone knows (except apparently this DA) you can’t copyright a title—otherwise I’d be in trouble with my song-title based books!

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  5. I'm totally baffled how any author would believe any good could come of something like this.

    And then there's the question about the office that approves trademarks (PTO?) giving it a pass to begin with. They should be absolutely up on the laws, and since, as I understand it, 1) you can't trademark a title, and 2) you can't trademark a word/something that's already been used first by others (it has to be unique, not part of the language for 500 years AND which has already been used as part of the title in a bevy of books). They're probably way understaffed and overworked...but really?

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