[Blog Update 2-8-2012: Thanks to a smart Twitter user pointing out a few flaws, we’ll call him “EdG”, I discovered a few things I should update to clarify my post. Thanks, EdG! I promise this time I did at least 20-minutes of research =) Though, if I may be so bold, you could have been a bit more polite. Constructive criticism and discussion broadens everyone’s knowledge. Updates will be higlighted in red.]
Ok, so as fair warning. I’m not a lawyer, nor have I ever studied law in length. All I am is a person who likes to look at things from different angles. For this post, I’m going to play devil’s advocate. Consider me Keanu, or Pacino. Whichever was the advocate to the other’s devil.
I’ve been seeing a lot of posts slamming Games Workshop over their recent actions taken against a small author over a book. While it’s hard to find a story from a news source, here’s a link to one of the more subdued takes on the matter.
To smash this thing into little “Martha, the dog is eating that crap, it’s going to get stuck in its throat” pieces, here’s the jist: Games Workshop claims it has a trademark over the word Space Marine in regard to titles for e-books, video games, and digital products, and requested that Amazon have the author’s e-book, “Spots the Space Marine”, taken down. The author claims that this is a generic term used by science fiction writers for many years, and isn’t covered under trademark laws, nor does Games Workshop’s trademark influence this medium. In many ways, she has a point. It’s a pretty basic descriptor; marine personnel who fight in space. Side note: why didn’t Amazon investigate this claim before taking the book down? GW didn’t send a Cease and Desist letter, so far as I know.
First, let’s examine how Games Workshop believes they own a trademark. According to their facebook post, the company believes they own the words when used in such places as titles, such as, “Edward the Space Marine”, not in common speech or a “body of prose”, such as, “Edwards is a space marine, dude.” Wait, say whaaat?
Let’s take a step back. How does titles and common speech relate to this case? Like a lot of things involving smart-making, it requires a bit of thought to get to the root. Sounds like a great time to take a quick writing lesson. There is a difference between being “the” something versus “a” something. When “the” is placed in a name, title, or simply a body of text, it singles that out as being singular. When an “a” is used, it denotes that thing as belonging to a group. For example, “Landry the Dog” is a full name of something called Landry the Dog, whereas “Landry, a dog” is a name followed by a classification, something named Landry is a dog. This has, literally, nothing to do with trademark law. I just thought you might like a refresher. Please stop throwing tomatoes.
Back to the subject at hand, the author’s book title, “Spots the Space Marine”, isn’t using space marine as a general term in regards to describing her character, it’s using the words in the title, which then singles it out, and which may veer it into potential trademark areas. Had her book been named “Spots, Intergalactic Warrior”, and inside it she referred to her character in numerous points of the text as a space marine, there would be no room for discussion. Just raised wine glasses and discussion on railroad expansion.
Now you may be thinking, “Well it’s silly that Games Workshop can trademark a common term.” Silly, maybe, but it is possible, because they do own the trademark to it. They have much more control over the term in the UK, and not so much in the US, so this may be something to be factored into the argument, but they do own it. In fact, they have owned the trademark since 1995. As a note, the book in question was written in 2009. Why should they be allowed to do so?
**Warning! Warning! Complete speculation on my part!** Potentially because their version of space marines popularized the term. Yes, the term existed for many years before GW, but with their stories, games, and work, the term became synonymous with their product. As an experiment, go to Images.Google.com and search the term “wolverine” (removing the quotation marks). Your first few results should be the marvel Character. Now, do the same thing with the search “space marine”. You’ll come up with nothing but Games Workshop imagery. Now try “space ranger”. Was your first thought Buzz Lightyear? What was the first image that came up? Here’s mine:
While Pixar’s movie created a popular character self identified as a space ranger, it did not popularize the term space ranger. Nor did Pixar tried to. Space Rangers weren’t a staple of the lore. If 500 books were to be written about space rangers, it wouldn’t have any bearing on Pixar’s product. Back to space marine. If I write a book series, “Space Marines Go to War”, those may produce sales just by using the GW popularized term, even with having nothing to do with the game or books. I believe this is the root of the issue for GW.
Now, let’s take a different type of title and see if applying this same logic works. I’m a writer (at least that’s what I tell myself), and I am writing a book about a woman who is known to have an ill temper. I decide to name my book, “Lana the Wolverine”. Makes sense. Wolverines are real animals, and are known to have bad tempers. Perfect! Pat on the back for being a genius. If this book were to hit the shelves, I could easily foresee a scenario where Marvel would sue me over it. They have a character called “The Wolverine”. Egads! I didn’t think about that. But my book has nothing to do with mutants or fellas with claws, I’m just using the comparison to the animal. Innocent enough. Doesn’t really matter. Marvel has legitimate claim to the title, so now Lana will need to become the Pot of Boiling Water, or something equally as hot and ouch-inducing. Thanks alot, mushy smart maker!
I’m such a clever guy. You see, now that I’ve introduced Marvel, I can easily use them for my next point. In her argument, the author claims that “space marine” is an extremely common term in science fiction, being used in dozens of books, movies, games, and franchises for many years. The marines in Aliens were space marines…
…Master Chief is a space marine…
Mother of God, they’re all over the place! But lo, there’s another science fiction word that’s insanely common; “superhero”.
Superheroes are all over the place in sci-fi. Hell, I have them on my underwear. In full rhinestones. Tres sexy. And yes, my underwear classifies as sci-fi; it’s filled with marvelous tales that are completely untrue. It would make sense, using the idea that words can be common in a genre, that there’s no way to trademark this word. Ha, I dare say! It’d be cray cray, as the kids say nowadays, to entertain the ide…
Q: What does it mean that Marvel and DC have a trademark on the word “Superhero”?
A: It means that companies cannot enter certain areas of commerce with the word/phrase “superhero” as part of their product name.
*cough* Ok, so common terms can be trademarked. But, hehehe, I mean, they just own the word. They’d never sue someo…
Marvel and DC sue small publisher over using the word superhero – (source: Blastr)
Well sh*t. It would seem that extremely common words can be trademarked…
I do want to question one common theme in this debate. What would Games Workshop have to gain by enforcing this trademark? If you read forums, it’d be because they’re, “RAWR GW SMASH! HATE PUNEE RITERS WHO MAEK MOWNEE. I EAT THEM.” Pretty doubtful. The book made only a fraction of what GW makes a year, so it’s not money. They also didn’t do it to stifle creativity, as, if used in the body of the book, the term can’t be trademarked (remember, it’s just titles). I say it’s because they want to keep the term synonymous with their brand. If I google search space marine books with the idea of finding GW products, I might get Spots in that search. If my non-existent but terribly bratty child asked his aunt for a space marine book, and she bought Spots, he’d be upset, she’d be confused, and I’d be ignoring them both with a glass whiskey. It comes down to the title, not the money.
Now, I’m not saying that Games Workshop does indeed own the words space marine in the context they say they do, or that they’re right to sue a small author over the word when the material is not at all influenced by their lore. I’m simply saying, “Hey, pull up a chair. Have some cocoa. Listen, I know you kids have all these strong ideas nowadays. It’s natural. I just want you to think about the entire story. Maybe Games Workshop isn’t a soulless abomination trying to destroy the little guy. Maybe they’re just a company who feel the have a legitimate claim over it, and are attempting to protect it. Attaboy. Now, stop touching it, or you’ll grow hair on your palms.” Really, it’s up to the courts to decide what legitimate claim, if any, Games Workshop has over the words.
I enjoy a lively debate! Polite and respectful, of course. I ain’t havin’ none of that there name callin’ or whatchamacallits. Holy balls, apparently that’s a real word. Anyways, please feel free to comment below on your thoughts, or tweet me @cbmcgames.
Now, if you’ll excuse me, I have to go hide in a bunker to hide from a fleet of Marvel lawyer-loaded Quinjets. I’m allergic to lawsuits.
To Do: Discuss Games Workshop’s Claim Over “Space Marine”