Random Stuff

Guest Blog: Samuel Z Jones on Cockygate

Cam Carney was a chirpy Cockney chap who owned a cock-eyed Corgie. He’d inherited it from his dear old Cockney mum, who had called the ghastly little beast Cocky without a shred of irony. Cocky the cock-eyed Corgie was the bane of Cam’s life, cocking its leg in every corner of the house and upon every caller at the door. Cocky had cost Cam numerous conjugal encounters, the Corgi’s accumulated aroma incompatible with convivial intercourse. The stench was so strong as to set eyes streaming. If mere chemical blinding were insufficient disincentive to abide, the little brute Cocky would itself set upon any visitor. Those few young ladies to dare beyond the front door soon departed, stockings shredded about the ankles by the ferocious nipping terror that was Cocky the cock-eyed Corgie…

I could go on, but that is sufficient to claim copyright on the character of Cocky the cock-eyed Corgie. That’s mine now, copyright. Only I may write the adventures of Cocky the Corgie. Should they be a hit, and launch me to megastar authorial status, I might go for a trademark. There would then be images of Cocky, a logo, a brand, and thus the components of a Trademark. At no point in this process would I acquire ownership of all Corgies, Cockneys, the word “Cocky”, or the concept of alliteration. It is also incidentally impossible to Trademark the concept of Satire, which is protected Free Speech under law.

Welcome to Cockygate, the latest daft scandal to rock the Small-Press. Someone has raised the question (again) of whether it is possible to Trademark a word.

Short answer: No, it is not.

Long answer… people seem very confused about the difference between Copyright and Trademark, what each of those actually means, and the consequences for publishing.

Copyright is automatic, the default state of any written or artistic thing to which you claim authorship. You wrote it, you own it. You do not have to register it. The common mistaken belief that you do arises from a brief period in 20th Century America when the US required Americans to register copyright. Only in America, and only once upon a time: Since literally every other country on Earth did not do it that way, the US changed its position to become compatible with international copyright law. You do not have to register copyright.

Copyright relates to creative content in all forms and media: A Trademark relates to the corporate identity of a brand. There is crossover; both copyright and trademark may apply to essentially the same objects.

A story is copyright; the author owns the words on the page in the order they are written. They do not own each word individually, nor any specific phrases or combinations of words. They do not even own the names of the characters or fictitious places in the story. What they own is the story, as a whole, and all things contained within it, in that context. It is the literary work itself that is copyright, not any specific part of the content.

A Trademark is a corporate identity, in all senses: It means both the total collection of imagery and tropes in the Trademarked thing, but also the business identity and public face of whoever owns the Intellectual Property in question. A Trademark may be a logo, character, name, imagery or concepts which together create a recognisable identity; we all recognize Mickey Mouse, and know that the big black ears or the big red trousers, or the puffy white gloves, represent Disney. Disney does not, however, own any of those component parts: They do not own cartoon mice, black ears, red trousers, white gloves, or variants of the name “Michael”: They only own one specific cartoon mouse, and the specific ears, trousers and gloves associated to him, because Disney created him (Copyright) and he represents Disney (Trademark).

A basic grasp of Intellectual Property law is foundational to pursuing any professional ambitions as a writer, as essential as honing your creative craft and learning your way around the publishing world.

Writers need to know this, for their own Intellectual Property rights and to advise clients in creative projects: Copyright and trademark relate to a collection of imagery, not to the individual images comprising the whole.

Back to Cockygate, and the present hysteria. People are asking what they should do, if they are one of the authors facing harassment for already having the audacity to have used “Cocky” in the title of a book, or if something similar happens again.

Be assured that there is case law on this, which sets the precedent for how such claims are resolved. Just because everyone knows (or should know) that you can’t copyright or Trademark a word doesn’t stop people occasionally trying.

Disney have filed so many brand infringement claims that it has become a running joke. Many of Disney’s most iconic films are fairytales, and as such the story and characters are Public Domain. Anyone can write a new Snow White. Disney challenged that and similar examples in court, and came away with only the Distinctive Likeness of the characters: Disney one specific version of Snow White, her costume as depicted in the cartoon. They do not own the name, concept, or plot. They do not own the Seven Dwarfs, they only own a specific Seven Dwarfs. You can call your Seven Dwarfs anything you please, so long as they are not named for the famed Seven of Disney’s film.

That an alleged infringement be accidental or not intended to cash-in on a trademark is influential to such cases; a successful claim often swings on whether the accused party knew or believed that they stood to gain financially from mimicking larger, more popular brand. Important too is any element of deception; Disney have been unable to prevent children’s party entertainers dressing as recognisable princesses, for example, since there is clearly no attempt to pretend that the company itself is directly affiliated to Disney. Parents hiring Belle or Snow White for their daughter’s birthday do not generally think they are hiring a Disney employee, so there is no demonstrable loss of revenue to Disney’s brand.

Fantasy wargames giant Games Workshop recently had to rebrand many of heir products in the “Warhammer 40K” line, after losing a Trademark infringement claim against small producers of Fantasy and Sci-Fi gaming miniatures. Among the many points contested by GW, they attempted to claim that the specific scale of miniatures used in Warhammer was a Trademark. On this basis they sued, attempting to stop anyone else from producing miniatures and scenery that matched “their” scale. GW lost, and were unable to shut down the hundreds of small companies producing compatible wargames pieces.

Another point contested and lost was ownership of the concepts of “Space Marines” and “Imperial Guard.” The Space Marine issue had also previously seen legal threats between Games Workshop and the owners of the Aliens franchise. It was found in court that GW do not own “Imperial Guard”, but the specific design of their Space Marines and the nomenclature “Adeptus Astartes” are legitimately their IP. GW failed to prove that the specific design of shoulder-pad worn by their Space Marines was a Trademark, but were upheld in ownership of the symbols and insignia specific to Space Marine units in the Warhammer universe. GW have also since increased the usage of the term “Adeptus Astartes” to strengthen their claim on their specific Space Marines.

Much of GW’s case was thrown out, however, and the principle was upheld that no-one can own generic Fantasy or Sci-Fi tropes. You cannot copyright orcs and elves (a point long ago and much more gracefully conceded by Wizards Of The Coast, owners of the D&D franchise).

These and other high-profile cases were much more complex than the Cockygate fiasco. The actual document of registration is available online, and specifies that the claim relates to the word itself. It expressly states that there is no specific logo, font, or associated imagery. This means that components of a genuine Trademark are not present in the claim. I suspect that the person in question has made that same mistake alluded to at the start here, and mistakenly filed a Trademark thinking it the same thing or a “stronger form” of copyright. A reputable lawyer or fellow professional writer could and should have explained all this to her. I am sure the latter have since tried.

So what has she actually got, for the cocky trademark claim? Just what she had before: Copyright on stories in a particular genre, about two brothers of a particular name. Only she can write those stories. Anyone else can use the word “cocky”, in a sentence or a title. It is not infringing her brand because to be a brand, the Cocky Brothers would have to be a recognizable flagship product of the author’s business. There is no logo, no defining image, you would not recognize these brothers by a silhouette (which is a noted test of such things), there are no catchphrases, lyrics, tunes or jingles that one immediately associates, no items or apparel immediately iconic to these two characters.

The Chuckle Brothers are a Trademark, the Cocky Brothers are not (paperwork to the contrary notwithstanding). Both are copyright. The Chuckle Brothers are the face of two actors’ entire career, they are known for nothing else and trade under that name as a business in itself. The Cocky Brothers are just two characters in a romance series; they do not represent the author herself or her business, in the same sense that iconic characters like Mickey Mouse represent Disney.

To the people caught up in this fiasco directly, I would say: Fight back. Write back, and tell them to get stuffed. Then write to others in the same boat, and all write together, telling them to stuff it further. If publishers or platforms take this more seriously than it deserves, write to them too, politely, explaining what they should already know (much of it is right here, for your reference). If it actually comes to court, then start a Class Action lawsuit: When lots of people all need to sue over the same issue, they can legally club together and sue en mass. And that frightens even big corporations. It’s not Disney or some equally huge conglomerate pushing this one; it’s one author and her over-supportive publisher.

Stop panicking, please. This is not a scandal to rock the publishing world. It’s happened before, it’ll happen again. Calm yourselves and wait for the court cases, if it even gets that far.

More information on Samuel Z Jones and his books can be found here


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s