One of my Anony-Mice from the previous post directed me to this headline in the Daily Beast: Muggles Ruin Harry Potter Dinner originally from The Guardian UK. It seems a restaurateur in London whose daughter is an "obsessive" fan wanted to host a fun Harry Potter themed dinner on Halloween.

She didn't count on the Zombie Lawyers coming out of the Crypt:

( Everything Under the Cut... )

My friend   bohemianspirit   showed me a developing story over on the Zenhabits blog.
 
It seems that the blogger, Leo Babauta, had used the phrase "Feel the fear but do it anyway" as the title of a post, and was then served with a Cease and Desist email from the attorneys of a writer who has that phrase trademarked as the title of a book. Unbelievable. He had never heard of her book, nor was he quoting her, but she wanted him to put a trademark symbol beside the words and a disclaimer that she was granting him "permission" under the title.
 
Zenhabits: Feel the Fear and Do It Anyway or The Privatizaion of the English Language

bohemianspirit and I left comments over there. There are alot of comments, pro and con, but mostly in favor of the blogger.


UPDATE: Lots and Lots of bloggers are picking up this story. Techdirt even gave me credit for sending them the story - wow! I didn't expect that.

Techdirt: Using Trademark To 'Privatize The English Language' from the did-you-(R)-that? dept

Jeanne sent in news of yet another overly aggressive trademark claim, this time on a blogger who just so happened to use the phrase "feel the fear and do it anyway" in a blog post.

. . . trademark law is only supposed to apply to use in commerce, and it seems like a stretch to claim the blog post is use in commerce (though, since the blog has ads, the lawyers might disagree). However, the fact that the use of the phrase seems to have absolutely nothing to do with the book again raises questions about how this could possibly be considered confusing or dilutive of the mark. Either way, Barbauta makes a point we've been trying to make here for a long, long time...

More Bloggers Chime In:
Raptitude: Get Up Stand Up
Feel the Fear and Do It Anyway: The Allure of Taking Someone Down
Tararua Library: Feel the Fear and the Lawyers
 
And some great information here:
Andrew Flusche, Attorney: Trademark Dispute Against My Favorite Author

Andrew writes: ...Susan Jeffers holds a federal trademark registration for “FEEL THE FEAR…AND DO IT ANYWAY.” She actually owns several registration for that precise trademark, for different goods and services.

The main trademark registration at question here is probably registration # 3338961 for these specified services: Education services, namely conducting seminars, workshops and training programs both in person and online, and the production of video and television programs in the field of psychology, spirituality, personal development and self improvement.

But the real question is: How did Leo use the trademark? He wrote a blog post that used the phrase “feel the fear and do it anyway” deep within the content.

Here’s the key: Leo didn’t use the phrase as a trademark. Susan Jeffers doesn’t own the exclusive right to “feel the fear…and do it anyway.” She just owns the right to use that phrase as a trademark on certain goods and services.

I also  came across the Ask Harriete blog written by an artist with a series of enlightening posts about copyright. She talks about an artist who liked to work with candy wrappers that were also trademarked. However, when you see the pictures it's obvious that the artwork is not meant to replace the candy or to resell the wrappers as candy wrappers. And that's the thing. Fair Use allows for creativity, even if the materials are trademarked or copyrighted.  The work cannot replace the original, but has to transform it.  It's really not rocket science, even though people seem to find this hard to understand.

Cease and Desist Letters designed to Scare Artists

Understanding Fair Use and Copyright Laws

Finally, more in the long saga of Shepard Fairey and the AP:

Stanford Fair Use Project: AP Issues Statement, Misses Point Entirely

Bluestocking has more analysis of the Lexicon Trial - the legal gift that keeps on giving.

The Tesimony of Janet Sorensen

And remember back when we were talking about the Trial Scenes in Gilligan's Island?  I found one of them on YouTube.  Apologies to my British friends here for the horrible faux-Brit accents, and the parodies of everything from My Fair Lady to Mary Poppins:



Next, I read about a Trademark case that made me scoff in disbelief. An Alaska woman named Barbara Holmes made some baby clothes with the phrase "Got Breastmilk?" appliqued on them, and guess what - attorneys for the California Milk Processors Board sent out C&Ds saying she was threatening their trademark for "Got Milk."  They not only told her desist, but they requested that she send them all the materials she used in making the clothes. Don't these attorneys have anything better to do?  I mean, honestly?

Harvard Law Blog: The Most Thorough Trademark Policing Ever

Anchorage Daily News: Got Milk? Lawyers Huff at Talkeetna Artist's Parody

OMG - and check out her Backwoods Attorney. I love this guy!  

Well, still no news about the Lexicon Trial. Will August be a turning point? Or has my blog become the online equivalent of Bleak House, and my life the eqivalent of the Madwoman in the Attic who lives alone with her parakeet? Well perhaps . . . if I lived alone instead of in a crowded house full of teenagers, and if I had a parakeet instead of a rambunctious little dog.

On with the Legal News:

Bluestocking continues her analysis of the Lexicon Trial with a good witness for the Defense, who was actually prepared and qualified to give testimony:

The Testimony of Bruce Harris

Next, William Patry, one of the first people to ever write about the Lexicon Case, has ended his own long-running blog this week, stating that people see him now only as a mouthpiece for Google and not a private blogger, crazy people write comments on his blog, and that he finds the state of copyright in the U.S. to be "depressing."

"Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately."

His blog has been deleted, but luckily, I saved a copy of Patry's essay on the Lexicon Trial: Read it Here.  It's sad that he is so pessimistic - probably because Google is having troubles with YouTube in the courts.

Finally, Techdirt has this Article:

Hasbro's Nightmare: Scrabulous Returns With New Name And (A Few) New Rules
from the bad-business-decision. dept

It seems that the toy company Hasbro has sued a group on Facebook for creating their own online version of the word-game Scrabble - called "Scrabulus." I can't make this stuff up - it sounds like a name from one of JKR's Prequels. 

"The awkward, shy, greasy, and worst of all, unpopular Scrabbulus crept down the hallway clutching his stack of books, which included a dictionary, a thesaurus, and most infuriating of all, a cheaply alphabetized Lexicon of wizarding terms which he had pulled from a toilet in Moaning Myrtle's bathroom where a girl named Jo had chucked it in disgust." 

( Read all about the Case in Vowels and Consonents . . .  )

I found the following on the Shelf Awareness book trade blog ~ this is tongue-in-cheek:

. . . in an additional new move, the lawyers have copyrighted and trademarked the words "Harry" and "Potter" and will protect those brands. In a statement, the author said, "Muggles everywhere should be happy that I have been so restrained. Some thought I should protect every word I wrote in the seven Harry Potter volumes."

Nonetheless, a range of affected people and groups have already protested, and Rowling quickly responded with suggestions that she said would be legally satisfactory to her. For one, new editions of Peter Rabbit titles can have the byline "Beatrix P." Likewise future DVDs of the 1989 classic may be retitled When Harold Met Sally. And Chapin and Connick, Jr., should be enough to convey the identities of those magical musicians.

Referring to that was this comment on the Library and Information Sciences Blog:

"So, does that mean we should expect to be hearing about a name change out of Buckingham Palace..."The Prince Formerly Known As Harry", along with a copyrighted unpronounceable symbol?"

English is a fluid and ever-changing language, and many authors have contributed new words.  There is even a word for those ~  "Neologisms."   These are words that come into, dare I write it? - the "Lexicon" of everyday speech.  When a word is catchy enough, it becomes part of the language. There are many neologisms from literature:  Catch-22, Quixotic, Scrooge, or Pollyanna. Lewis Carroll's poem "Jabberwocky" gave us many of them: Slithy, Burbled, Chortled, and Galumphing.  That "Slithy" is just one syllable from "Slytherin" should come as no surprise, either, yet JKR/WB would say that Slytherin is trademarked by them, and was "invented" by JKR.  But didn't she ever read "Jabberwocky" while growing up?  Isn't she influenced in her "inventiveness"?  


( More Thoughts )


The writer BabyBlue (ZoeRose) in the blog  Shell Cottage has written quite eloquently on this question of the Neologisms from the Harry Potter series.   If words are owned by the author, does that mean the definitions are also?  Is that why the "Unofficial" Lexicon is bad, while the "Official" HP Future Encyclopedia will be intrinsically good?  When the "Mother of All HP Encyclopedias" is published, will it have little trademark symbols beside each word?
  ( Essay by ZoeRose on the Lexicon and Word Ownership )