Saturday, May 03, 2008

Many movie and comic characters are trademarked; are they too finicky about unsolicited submissions?

Movie studios generally enforce a “third party” policy with respect to submissions, which generally means they must receive all creative ideas from agents rather than novice writers themselves. They say they must enforce this to protect themselves from accidental liability, should something developed in the normal guild channels accidentally resemble a work submitted by a newbie. I expect to cover this in more detail later on the movies blog, but there is one way in which trademark law can help reduce the risk that studios perceive, and it becomes more relevant in a world of instant publication on the Internet.

Television series names (because they have multiple episodes) and characters can be trademarked. Movie franchises (Star Wars, Indiana Jones, etc) can be trademarked. The familiar comic book characters that have generated so many films and television series generally are protected by trademark. The USPTO gives comic book characters their own class (16). Often the characters are trademarked not only for comics or media, but also for use in promoting other consumer products, like cereal (which means that separate registrations will be done in other classes). That probably means that no novice could safely publish a book (or distribute a micro-budget film) using these characters. (If I write and publish a novel about two brothers, they (along with their story setting) need to be recognizably different from Dean and Sam – likeable as they are – in “Supernatural,” and the book needs to be called something else; there are some complicated issues with legitimate parody, however.) That probably also means that an unsolicited submission for a story with these characters could not present a risk because they are already well-protected. The 2006 extension of trademark dilution to include a “prospective” provision probably strengthens the hand of studios further.

A good discussion of all this appears from Law.E.M., “Superheroes Need Protection Too,” by William E. Maguire, here. He uses a fictitious character “Prime”, but it seems to me that “prime” would make a good didactic jargon synonym for “fictional character trade dress” if the industry wanted a term for the concept. Visual depictions of a character also can get copyright protection.

Some studios (like CWTV) have message boards discussing their shows, but warn posters that the studio “owns” the creative potential of any comment made—meaning they will not compensate the poster for any “suggestions” that accidentally or perhaps intentionally get used later. That’s probably window dressing, as trademark law would protect the studios anyway from claims.

I do remember all the boards for Everwood and Smallville, where readers try to predict what will happen, and they are always wrong. I suggested that Ephram (in Everwood) play a specific piece of music, and six months later he really did. I think they read the comment. Sorry, no compensation for me. WB “owns” the comment and the artistic concept for that “character” (Ephram).

I’ll come back to this later with the topic of submission of scripts to agents.

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