When things are undecided in the world of law, you can bet that someone is looking to take advantage. The most recent example of this behavior is the attempts by the company Games Workshop (GW, for shorts) to own their “space marine” character as a trademark across a broad range of products instead of as a singular copyrighted expression. As an oversimplified distinction, copyrights protect original expressions of authorship (ex. paintings, songs, movies, etc.) and trademarks operate as a way to identify who makes particular goods and services (ex. who made that soda? Coca-Cola). Rather than policing this copyright and its evolved design, GW now acts to squelch use of the term “Space Marine” in “a commercially available product” (excerpts of their words, courtesy of a website that thought enough to preserve them). So, how far does that go?
By GW’s stated intention, the extent of that reach does not include “general use in everyday life, for example within a body of prose.” However, that ire seemingly includes someone who goes so far as to write a book entitled Spots The Space Marine about *GASP* a marine in space. Of course, rather than take on a major movie studio or any number of the bigwigs on that have used the term, they took aim at M.C.A. Hogarth because, well, I don’t know. A cynic might wager a guess in the realm of “small artist = less resources = less fight” and assume this is not the first such time GW has thrown its weight around, but the speculation matters not. The reality is that the internet did not take too kindly to GW’s actions, and that was surely a calculated risk when GW made the move to engage in this kind of trademark policing. So, why is this type of risk worth it for a company like GW?
The “why” of it all is focused on three principal reasons. First, copyrights have terms and enter the public domain when those terms end. By contrast, trademarks live for as long as you use them in commerce (and ignore some other complications not relevant here). Second, the holders of copyrights at the scale of DC Comics’ use of Superman and Disney’s use of Mickey Mouse have often invested substantial resources into these types of mega-successful copyrighted works to the extent their brand is inexorably tied to them as a foundational core of the business. If you take these things away, you would possibly destroy much of the economic value of that enterprise. Third, and this is where GW is more far-reaching than either DC or Disney, why waste the resources fighting over whether copyright has been infringed as to a limited expression when you can try to own the concept captured in the expression? Or, to phrase it another way, why not just outright own the idea behind the expression?
Ownership of an idea is the holy grail of intellectual property because ideas are generally not protected under the law. By letting copyrights continue to exist as trademarks, we let owners that had some form of exclusive use retain it in perpetuity because they have brand goodwill built up over the term of the copyright. Possibly in the case of a company like DC or Disney, these results feel less unfair because they are trying to own a specific character with a unique background and expression. That is a balancing act of law and economics for which there are arguments on both sides…until you hear about a company like GW. Unless the distinction of the character not just being a marine in space is lost on me, what is it about GW’s “space marine” that it doesn’t want others using? Could “space solider” or “space sailor” be too confusing to allow for a competing use in commerce? Are sci-fi writers just resigned to give up on the idea of the Marines being continued from their current form into squads used for interstellar travel?
But, take heart true believers, for this story is far from over! Beyond the fundamental legal flaws of GW’s position, it awoke some sleeping giants. First, it greatly offended big names in science fiction like Neil Gaiman and Wil Wheaton. While the feelings of two individuals may not matter to GW, it is possible that these are persons that hold a lot of esteem among GW’s core customers. Whether or not there’s actual market crossover, it never hurts the proverbial little guy to get a retweet from Neil Gaiman to his 1.8+ million Twitter followers when trying to get your message about corporate bullying out there. Or, when Mr. Wheaton suggests getting the Electronic Frontier Foundation to bring its own warhammer down on companies like GW? Well, that’s even more satisfying. Score one for the indies.
