06 February 2013

Down and Give Me Twenty-Five Pages

...that's twenty for me and five for the Corps. But not, apparently, 25 pages about space marines without permission from a UK-based gaming company.

Games Workshop (UK) is the purported owner of United States trademarks "Space Marines" in International Class 28 (No. 1922180, "board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint, sold therewith") and International Class 9 (No. 2100767, "video computer games; computer software for playing games"). (I'd offer links to the TESS entries, but TESS is based on session cookies.) MCA Hogarth1 wrote a piece of fiction that included Space Marines in the title, and sold it at the Big Brazilian River. GW issued a cease-and-desist letter, asserting its trademark rights.

There's just one tiny problem with GW's position: Books (and e-books) are not in International Class 28, and although e-books could call International Class 9 a home, they are not "video computer games [or] computer software for playing games," the limits of the US registrations. GW also claims a UK registration for "printed material" based upon stationery bearing the words "Space Marines", but that kind of extension within Class 16 (and Class 41) is explicitly not the law in the US. Too, this was at most an exemplary use — which is to say that it's the trademark equivalent of "fair use." And it goes that far if, and only if, Hogarth's novel uses "Space Marines" to refer to the Warhammer 40,000 variety of Space Marines.

What this really demonstrates, more than anything else, is that nobody should let lawyers anywhere near making judgments about the arts.

  • First of all, trademark law is unusually inane, even for a legal framework, concerning the arts. There is no excuse — none — for a currently noncompeting use even getting a cease-and-desist notice, let alone a lawsuit over aftermarket "gaming parts" and paints. The problem is that trademark is a "rabid dog" legal right: If you do not defend it against every single marginal infringement, you risk losing the mark against everyone.
  • Typically, a cease-and-desist letter notes only the existence of the mark; its registration, if it is registered; and then asserts infringement. It is up to the party receiving the cease-and-desist letter to find out the limits of the mark. Needless to say, in this instance, the Big Brazilian River did not, but just accepted that a mark valid in class 28 and possibly a limited portion of class 9 applied to e-books (class 16 and/or 41, or at best a distinct part of class 9). I have come to expect this kind of... slovenliness, I think, is the nicest way I can put it... in circumstances like this; very, very few retail distributors question the face of cease-and-desist letters.
  • Lawyers simply are not trained to deal with the arts. The Jack Daniels cease-and-desist letter is so remarkable precisely because it's so unusual. Leaving aside that lawyers don't understand art and the arts, they definitely don't understand artists, writers, and musicians... at least not before the latter sell out.
  • Ultimately, the real problem is that the classification system for goods and services was created by and for people who, themselves, don't understand creativity; quite the opposite, in fact. This is entirely consistent with the history of trademark law, which began as a way to keep toffs from being defrauded by counterfeit silverware artisans. Trademark is about ensuring that a purchaser can rely on the mark as a designation of origin of distinctive goods or services. Since, by definition, each instance of art is distinctive, trademark law is at best a poor fit. This is compounded by the silliness of the classification system when applied to the arts. It's well beyond the scope of this short blawg entry, but let's just say that it would have to immensely improve its rationality and relationship to the realities and processes of creativity to be merely insane.

This is not going to end well for anyone. Except, that is, those of us who get our amusement by watching this stuff.

  1. Disclosure: a decade and a half ago, we were both members of an online writing group at the sadly gone Speculations.com.