copyright, trademark, and fame

[First of all: this whole entry was spurred by this entry over on Kerflop. So go read it first if you really care. (It was going to be a comment, but it got a bit long…) I haven’t read the original thread that she is responding to. Also, I do not intend to boycott pork products, and though I am all for breastfeeding, I think in this particular instance it’s almost not worth the fight, since I think that “the other white milk” isn’t a particularly apt slogan.]

The mistake in the Pork Board’s letter (which is probably half of what got people up in arms) was fairly stupid and egregious. Do your freaking homework, people. That said, I believe they have apologized for it and that’s good.

The whole entry is a very good copyright discussion by Jessica. It’s educating, I think, to see these things from the business side. Also, some things were made clear in the comment (towards the bottom) by Bryan – the difference between copyright and trademark. Very good points.

My first reaction to it all was, surely this could be possibly covered under parody — if Weird Al can take an ENTIRE SONG, instrumentation and all, and parody it legally, I would have to wonder about this shirt thing.

In the case of Jessica’s diaper patterns, I would say of course she should make an effort to protect them. Absolutely. Just like if someone (like, oh say, me, someday) had a novel (or poem, or short story) plagiarized, steps should certainly be taken. But (and here Bryan’s trademark comment is very clarified), I feel like language is in some way different, especially brief language, like a slogan. Language belongs to all of us. It’s more… slippery than something physical like a pattern. Especially terms and phrases that they WANT to be universally recognized… then they complain that it’s become part of the culture?

I certainly don’t want to devalue language, or imply that people shouldn’t be paid for their use of it. But when I publish a novel about modern life, it enrages me to think that I couldn’t mention McDonald’s, or Coke, or Kleenex, or that I’d have to say hook-and-loop-fasteners instead of Velcro, or in-line-skates instead of rollerblades. It’s all a part of the world around me, and the idea that I might get slapped in the face for trying to portray it accurately is upsetting to say the least.

It’s probably a ridiculous and unrealistic view, but… if I were to write a catchphrase, or a little song, or something like that — yes, I’d like to be paid for it. But if it eventually became such a part of society around me that people used it in everyday speech, that they accepted it as so much a part of their lives that they couldn’t remember who created it, because surely it had just always existed… well. To me that’s real fame.

ETA: There has been a happy resolution to the whole to-do. Yay!

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6 responses to “copyright, trademark, and fame

  1. Having a household name (or phrase) is a company’s dream come true. BUT it can backfire. Everybody calls tissue, regardless of the brand “Kleenex”. Which ends up sort of shooting Kleenex in the foot. See, you want your hard worked for trademark to make people think of YOUR brand of tissue, not everybody else’s, right? Otherwise, the generic brand tissue is profiting from your hard work.

    This has a name, I can’t remember what it is called. Xerox really fought hard when people started calling every single copy machine and copied sheet of paper a “Xerox” because it weakened their own brand.

    So I don’t know. What you say makes sense to normal non business folks, but I’m telling you from a business point of view the politics in creating and protecting your brand are just insane. There are so many things to think about. Entire floors, entire firms are dedicated to this kind of thing.

    Blah blah blah. I’ll shut up! 🙂

  2. Um … I’m suing every stinkin’ person that says OH MY STINKIN HECK! Suing them I say!

  3. Is it sueing or suing? Wouldn’t sue-ing be something that Sue was doing? I just don’t know.

  4. @Kerflop – I can see that point, but in a sense I think it would still benefit the original company to have their’s be THE name… after all, even if I call everything a kleenex, I’ll still recognize, in the tissue aisle at the store, the fact that one box says the familiar Kleenex and the others don’t. I may end up (because of price, or whatever) going with a different brand on that trip, but (at least as far as I’m concerned) the other one is the REAL one.

    But I think I remember reading also that legally they have to at least be challenging other usages, otherwise (and this is probably what they’re really concerned about) the word will become an actual word, and other companies can start putting it on their labels, like the famous aspirin. Which obviously WOULD be bad for the original company. I tend to feel like in a couple hundred years it won’t matter anyway, but I know I have that luxury as a private citizen n’stuff. (And I get a little English major rebelliousness going on — don’t limit the language! — though I think they’re not as hard on novels. I’ve heard of issues being raised with articles and (possibly) short stories though.)

  5. @OMSH – Sueing?? OH MY STINKIN’ HECK! (whoops…) 🙂

  6. The thing that annoyed me off is that it turned in to a breast-feeding issue when it really wasn’t the core issue.