Writer Hit by Trademark Bully

I’ve been watching this one develop all day, since I saw John Scalzi’s post about it, and things look to be turning around for the writer involved. Still, she’s still pretty firmly in suckland at this point, and the fact that it’s happening at all is outrageous.

MCA Hogarth wrote a book called Spots the Space Marine and self-pubbed it. Games Workshop (a large game company that publishes the very popular game Warhammer 40K) has recently decided to exercise its trademark of the term “space marine” — it has the term trademarked in the area of tabletop games and video games — against fiction. It sent a DMCA notice to Amazon, claiming that Spots violated its trademark, and Amazon took the book down.

Wow, where to start?

First, Games Workshop does not own the term “space marine” in the context of fiction. There’ve been space marines running around SF for about as long as there’s been a recognized genre called science fiction, and maybe even longer. Doc Smith and Robert Heinlein had space marines. There’s reams of prior art. Just because GW’s got a lock on the term in the gaming arena doesn’t mean they own it in fiction too, and the fact that they’ve started publishing fiction recently doesn’t change that.

Second, as Cory Doctorow points out, the DMCA doesn’t cover trademarks, only copyrights, so Amazon was under no obligation to comply with the take-down notice. They chose to do so freely when they didn’t have to — a thwap of the salmon to Amazon for being an auxiliary idiot here. (The comments to Cory’s post are pretty entertaining, if you’re at all familiar with Heinlein’s Starship Troopers. :D )

Third, someone at Games Workshop must know their trademark assertion is completely bogus, because they’re going after a tiny little indie-pubbed book, but (so far as I’ve heard) haven’t said so much as “Peep” any of the big New York publishers who are “infringing” just as much on their supposed trademark, but who all have lawyers on staff.

This is pathetic behavior on the part of Games Workshop. I don’t know where their legal advice is coming from, but it’s not a source I’d ever hire, because it’s making them look like idiots.

The legal blog Popehat is calling for pro bono help for Ms. Hogarth in fighting this crap, which she can’t afford to do on her own. (Which GW counted on, I’m sure.) Popehat has a good track record with this sort of thing, as when attorney Charles Carreon sued Matt Inman; I’m betting they can get help for Ms. Hogarth too, and I’m looking forward to reading about the results.

I’ve been a gamer since I was a teenager. I played in the same FRPG campaign for almost twenty years, until I got married and moved away from my group. I used to work as a developer/gamemaster for a company that does online multi-player RPGs. I have no local gaming group, but still play computer games. As a member of the community Games Workshop is trying to do business in, I have to say that I’ll never again buy one of their products, ever. They’re a pack of cowardly, bullying douchebags and don’t deserve my business. I hope a lot of other gamers make the same decision.

And I hope a trademark attorney or two responds to Popehat’s call and gives Games Workshop a good smack upside the head on Ms. Hogarth’s behalf. They definitely need a few brain cells jarred loose.

Angie

2 Responses to “Writer Hit by Trademark Bully”

  1. I hadn’t thought about the DMCA not covering trademarks. There is a lot in that act that has nothing to do with copyright though, so it doesn’t surprise me that Amazon complied. I’m not a lawyer, and didn’t read all of the DMCA, but there is a provision in there that give you as a site owner protection if someone posts infringing material on your site. So if I violate copyright in these comments, and you comply with a valid DMCA, you can’t be held liable for my actions. Just as my hosting company can’t be if they take down a site.

    The DMCA is one of the most abused acts out there.

    I purchased a few of the author’s Kindle books and am planning on dropping some cash in her kitty to fund her legal woes. I also wrote a letter to Games Workshop suggesting they fire their lawyers.

  2. Angie says:

    Christopher — The DMCA is one of the most abused acts out there.

    I certainly agree with that. And you’re probably right about Amazon’s response being a generic CYA. It’s still annoying that they apparently have no filter whatsoever on this, that they’ll just automatically rubber-stamp whatever outrageous claim is made.

    This DMCA claim is the IP equivalent of a SLAPP suit, and it should be illegal for the same reason SLAPP suits are, at least in some states. GW has to know that there’s no way they’d win this in court, but they’re betting that an indie pubbing writer can’t afford to take it anywhere near court. I’m just hoping that with the resources lining up behind Ms. Hogarth, that the right side wins this one.

    I also wrote a letter to Games Workshop suggesting they fire their lawyers.

    I was talking on my other blog to someone who used to be a lawyer, and this probably isn’t a problem with GW’s lawyers. Anyone who’s passed the bar has to know that this is bogus and would never stand up in court, but a lot of lawyers will file whatever in accordance with their client’s instructions, so long as they’re being paid. And a company like GW probably wants that kind of lawyer on their staff, given their actions here. It’s up to the client to ask, “Is this legitimate? Could we win this one?” and then make responsible use the feedback they get.

    If they’re going for a SLAPP type effect, though, they know this isn’t legitimate and wouldn’t stand up. They’re just rolling the bully dice. They need a good stomping to teach them some manners.

    Angie