Wednesday, April 16, 2008

Trademarks, Copyrights, Fair Use, and Prior Restraint

I was flinging around some terminology in the last post and it occurs to me that some of you might benefit from a little explanation. The rest of you, feel free to chime in and correct me where needed, as I'm neither a lawyer nor do I play one on TV. In fact, the sole extent of my legal training amounts to two semesters of Constitutional Law back in J-school, and a certain amount of sitting around drinking beer with lawyers since then.

A trademark is a word, phrase, or image uniquely associated with and identifying the ownership of a product or service. You can trademark just about anything — for a laugh sometime, go look at the list of McDonald's trademarks — but only in a specific context. For example, if I were producing a sci-fi television series, I could call the hero's mighty vessel the Starship Groenteburger™ and there's not a darned thing McDonald's could do about it.

The difference between a Trademark™ and a Registered Trademark® is that a business can declare something a trademark simply by asserting that it is one, while a registered trademark is one that has been registered with the Commerce Department.

As a writer, you're required to acknowledge other people's trademarks, but not to bow and scrape before them. Generally it's good form to capitalize them (e.g., Delta Airlines), except if unusual capitalization is part of the trademark (e.g., eBay), but you're not required to use the trademark symbol unless your editor is exceptionally anal. The most important thing is to remember about trademarks is to never make them into verbs. E.g., don't write about somebody "kleenexing the glass before xeroxing the document," they use Kleenex brand tissues to wipe the glass in the Xerox copier. Or better yet, unless you're writing chick-lit (e.g., The Devil Wears Prada), have your character use a tissue to wipe the copier, and who cares what brands are involved?

In fictional dialog, of course, all bets are off and your characters can say anything they want.

A copyright is a legal protection for the creator or owner of a work. The important thing to remember here is that the copyright protects the work itself, not the idea behind the work. You cannot copyright individual words, phrases, or titles, although you can copyright images. If I wanted to write a book entitled The DaVinci Code I'm perfectly free to do so, just as I'm perfectly free to write a book about some future spacecraft named after an aircraft carrier that goes off on a five-year mission to explore the nearby galaxy, and yet strangely enough seems to do very little actual exploring. Provided I don't actually name the ship Enterprise, put it under the control of the United Federation of Planets, and name the captain Christopher Pike, I'm on solid ground.

The Fair Use doctrine has its roots in common law, and basically grants some limited exceptions to trademark and copyright law. You can use trademarks when writing about a business or work; for example, I can use both "Star Trek" and "Paramount" when writing a review of Star Trek 37: The Search for A New Audience and describing it as "by far the worst excrescence ever to emerge from the bad end of Paramount's cinematic sausage factory."

The Fair Use doctrine also permits you to use limited excerpts from another's copyrighted work for purposes of criticism, commentary, or education, even if you do stand to make some money from writing that commentary. For example, if I was writing about Margaret Atwood's economical use of language to convey oppressive physical details in Oryx and Crake, I could quote:
"It's only the heat," he tells himself. "I'll be fine once it rains." He's sweating so hard he can almost hear it; trickles of sweat crawl down him, except that sometimes the trickles are insects. He appears to be attractive to beetles. Beetles, flies, bees, as if he's dead meat, or one of the nastier flowers.

The best thing about the noon hours is that at least he doesn't get hungry: even the though of food makes him queasy, like chocolate cake in a steam bath. He wishes he could cool himself by hanging out his tongue.
It doesn't become plagiarism until I try to pass it off as my own work, and it doesn't violate the Fair Use doctrine until I do something like, say, photocopy an entire chapter or an entire short story to use as a handout in a class, or post an entire article from a news source on my blog.

Which is why you'll notice that I never quote more than two or three paragraphs at the most, and always identify the source and when possible link back to it.

Finally, as you might expect, most of the discussion in J-school revolved around how not to get sued, and focused primarily on slander and libel. I won't go into that in detail beyond saying the standards for public figures are vastly different from those for proles, which is why writers can get away with saying things about, say, Hillary Clinton, that they could never dare to publish about Wanda from down the street. The most interesting aspect of this viz Monday's post, though, was that it was beaten into our heads over and over again that the 1st Amendment absolutely forbids prior restraint: that is, the idea that you can be sued for something libelous or plagiaristic before you publish it. The principle of law was supposed to be that, until the moment it was published, no actual damage had occurred, and without actual damage, there was no actionable case.

Again, as I said yesterday, that part of the Consitution apparently has been declared a no-op in recent years, and I must have missed the memo. Certain the McCain-Feingold Campaign Financing Act includes some provisions that smack of prior restraint, as does the Patriot Act.

Your thoughts?