In recent months, the subject of intellectual property rights has become a very big issue for me personally. I swear, the last half of 2013 must have been an unwritten copycat movement that I never received the memo on. Out of nowhere, I found myself defending my own intellectual properties on various fronts, all from claims originating in this time frame. However, to make matters worse, it opened my eyes to exactly how under-informed independent (or indie) authors really are on the subject.
As writers, we all recognize the value of a brand. We rely on creating something marketable and unique to grab the attention of our audiences, but it frightens me at how little the indie writer market seems to understand of exactly how sovereign we are in preserving the concepts we create. Worse, not a single indie writer I have discussed this issue with in recent months is even aware of the necessity to aggressively defend what they have created.
For anyone who does not know, I write four series – The Godslayer Cycle, Chaos Rising, Oz-Wonderland and Ron El’s Comic Book Trivia. Each of these are uniquely my own creations, and as such, in order to preserve these, I watch the Internet avidly for anyone else who might be trying to use these names. My approach here is twofold: First, I create a Google Alert™ (www.google.com/alert) for each unique name or phrase that is of potential concern; and, second, I periodically manually search for the terms, as well. Needless to say, I strongly urge anyone who has intellectual property concerns to take these steps at the very least.
Admittedly, Google Alerts is not perfect – in fact, I more often get random unrelated listings than I actually do anything of concern, and not all uses of the terms shows up in their search. Incidentally, it was through a periodic search in early January, 2014, that I discovered three people attempting to use series names which I had created. Of these, two were in pre-print conception, and the third was actually for sale on Amazon. Needless to say, I aggressively pursued these violations and though they are not always easily enforced, I prevailed in each instance.
The reason for this success is that I understand intellectual property law, while others either do not or seek to prey upon the ignorance of indie authors to profit off of our goodwill. There is a reason, after all, that there are not more books named “Game of Thrones” on the market. This article will endeavor to explain precisely why that is.
Most people understand what copyright is. I know that I myself have too often used this word to encompass all of intellectual property law because, quite frankly, it is the one word everyone seems to recognize. If you write a book, it’s is easier to say, “I own the copyright to that,” than, “I own the intellectual property rights to that”. However, it is a failure in many regards to use this kind of bargain basement identification, because it actually deprives you of your full rights under the law.
Intellectual property law is actually a three-fold set of laws, encompassing copyrights, trademarks and patents. The uneducated often think that copyright encompasses all three of these, but it does not. Intellectual property rights are divided into these three separate and distinct areas, and it is extremely important to differentiate between them all, as claiming copyright does not, for example, preserve your trademark rights.
As a quick overview, let me explain briefly what each of these terms means: a copyright protects original works, such as art or writing; a trademark protects names or symbols used to identify; and a patent protects the invention of practical things. So to define these in one word summaries, a copyright protects expression, a trademark protects recognition, and a patent protects creation. As you can see, though these are all related – and certainly some conceptions can certainly bridge these areas – none of these by themselves protect all intellectual property rights.
An important – and often misunderstood aspect – of the rights secured through the intellectual property laws surrounding these protections is that they must be registered with the United States government (or an equivalent government authority outside the United States) to have effect. This is frankly untrue and more than a little prejudiced in how this propaganda is tossed around. The truth is, use alone secures intellectual property rights. This is to say, using the unique property in public or commerce secures your rights. If I advertise the series Godslayer Cycle as a forthcoming series to the general public, then I have created a preliminary trademark claim. If I then offer a product using this name for sale, then I own the trademark. Simple as that. So if you cannot afford the several-hundred-dollar registration fee, do not stress too overly much, since your rights are already protected so long as you use the concept being protected.
Now, this is not to say that registration does not have its advantages. Especially prior to the electronic age, it was very difficult to prove that someone in New Jersey was deliberately violating the trademark of someone in Alaska. The centralized registration in the United States Patents and Trademarks Office would be the best way to secure proof that you either pre-solicited the trademark, or are actually engaged in its use in commerce. Nowadays, when most indie writers use Amazon as their point of venue, the electronic earmark of this mega-marketplace pretty significantly narrows down the possibility of someone contesting who used a trademarked term first, though the pre-solicited area is still best protected by registration.
As to my own issue, when first I came upon the infringements I mentioned earlier, I brought them up in discussion with other indie writers in my circle of friends. Each and every one insisted I could do nothing about the violations because of the commonly misinterpreted ideal, “You cannot copyright a title.” This is also, incidentally, the defense each infringer raised – that I could not stop them from using my brands because I could not copyright a title. That much is true, by the way: you cannot copyright a title – but you can trademark it.
As an example, Godslayer Cycle is a projected series of nine books that I am presently writing – with two of the books already for sale. I created the concept (patent), the name of the series (trademark) and the story itself (copyright). If someone else wrote a series that purported to have two groups of gods vie for control by releasing a set of magical swords in the mortal world to slay their counterparts with an avatar created to seek out and use the swords, I might well have a patent claim since the original concept which I created will have been compromised. However, I would have no claim for a set of gods just creating a set of magical swords alone, since this is really too nonspecific to be considered stealing my concept. Admittedly, patents are the most difficult to enforce in the writing profession, so this is not a claim you would often see advanced – I only mention it as a potential scenario.
Another example, as it occurred here, if someone published a series of books using Chaos Rising as the name of their series, then it would infringe upon the trademark I have for my own series of this name. I began using the name Chaos Rising as a unique identifying brand for my own series of novels in 2011, and anyone else using this name without my express consent for any other series of books violates my trademark.
This incidentally raises a point I am sure at least some of you are thinking – Chaos Rising by itself is not a unique creation. It has been used in movies, fiction and in video games. However, each of these is an independent area and does not violate trademark. If someone created a Chaos Rising card game, for instance (assuming they did not use patented concepts or ideas from my series), then there would be no trademark infringement. The key here is that a trademark is an “identifying” word or label, something that uniquely identifies a specific type of product.
In this example, Chaos Rising for me is a series of literary novels, and the term specifically and uniquely identifies such. The fictional Chaos Rising card game would, as counterpoint, uniquely identify a card game. Presumably, no one searching for a card game would be confused by finding a series of novels by the same name, or vice versa. Of course, there is always the likelihood that someone might believe they have a common genesis or connection, just as someone might think a movie or line of gummie bear candies by that name might reference one or the other, as well, but for the purposes of trademark, there is no way to protect against this.
This being said, I will remind the reader that I mentioned at the beginning that I personally protect my intellectual property rights “aggressively.” This is just as important – if not moreso – as the rights themselves. If someone uses your protected property and you do *not* object, then it dilutes the uniqueness of the property and then anyone else can swoop in and use it. For instance, should you have a small-time hack using your book title whom you believe will never make more than a ten-spot on your property, if you do not raise objection to the use, then you forego the right to challenge a major player who may come along later. You *must* be vigilant and you *must* object, or you run the risk of losing the ability to object later on.
The point of this article, of course, is to emphasize that – as writers – we all have a very strong foundation of rights on which to rely. But we must not only raise awareness of our rights, but we must also takes steps to defend them. And we must do so in spite of the difficulty this challenge may present to us down the line.
And whoever said writing for ourselves was going to be easy?
I welcome any comments to this article, as well as any requests for assistance. I am not a lawyer and cannot provide legal advice, but I can certainly share the knowledge I have on the subject.
Ron Glick (born January 20, 1969) is a community activist, and is presently active in several charitable enterprises. He was born in Plainville, KS. After living in various states, he currently lives in Kalispell, MT. He is the author of The Godslayer Cycle, Chaos Rising and the Oz-Wonderland series, as well as having written several volumes of Ron El’s Comic Book Trivia. He is presently working on the second novel of Chaos Rising. He loves contact and welcomes input on his work through his website at http://ronglick.com.