In February 2016 Larry Townsend gave a presentation to the San Francisco Chapter of the Romance Writers of America, an organization with more than 10,000 members nationally. The San Francisco Chapter is one of the largest and most successful, the latter measured by sales and numbers of devoted readers. Larry’s talk was entitled “The Do’s, Don’ts, and Drama of Intellectual Property Law for Romance Writers.” The presentation focused on current publishing contract issues and how best to avoid copyright infringement claims, as well as trademark and right of publicity laws applicable to writers of fiction.
The Branded Series: Opportunity to Court Trouble
In order to best explain the complexities of intellectual property law, Larry’s presentation featured the misadventures of Roweena “Ro” Mance who, the story begins, fancies a dashing young lawyer who happens to be named Fitzwilliam “Will” Darcy. But alas, Will appears to be in love with a slightly older and very successful romance writer by the name of Cleopatra Shea who goes by “Cleo,” but her crtics call her “Clee.” Cleo’s claim to fame is that of the author of the CROSSING THE DELAWARE romance series, involving a Mount Vernon chambermaid having a torrid affair with George Washington. The first installment, CROSSING THE DELAWARE… Into Forbidden Love, is succeeded by a crossing Into Unbridled Passion, and too many others until finally, having long passed the threshold of innocence, CROSSING THE DELAWARE… With A Paddle… And A Whip.
Copyright Infringement vs. “Scène à Faire”
Ro figures out that the only way to win Will’s attention is for her to become a truly excellent and successful romance writer worthy of his attention. Her eventful journey begins, punctuated with mistakes along the way. Her first storytelling effort looks an awful lot like the plot in the movie “Titanic.” She dodges a copyright lawsuit from the studio by pulling the infringing story summary of her forthcoming novel from her Kickstarter page, where she was seeking to raise money for her writing project (pens, paper, printer cartridges, and therapy twice a week). She did, however, learn what was copyright infringement in her proposed story and what was “scène à faire” – i.e., no copyright liability for such things as stock characters, conventional sequences of events in the romance genre, and cliché attributes of people and places. She writes a new novel and lands a publishing deal, while learning the treacherous landscape of publishing contracts, including the landmines of non-competition and cross-collateralization clauses (the latter where the publisher deducts the losses of one book against the profits of another).
Fair Use of Trademarks
After learning that Will was engaged to Cleo (later found to be untrue), Ro angrily writes a monograph in the form of a scathing criticism of Ms. Shea’s work, entitled Crossing The Delaware… In A Sinking Boat: Romantic Relation “Ships,” Listing Badly, Clee Shea Can’t Right. Ro is sued by Cleo on claims of trademark infringement and libel, among others. Will, believing he’s counseled both women, announces that he’s conflicted (and then some!) and can’t help either.
Ro, forced to represent herself, learns the good news that book titles can’t be trademarks. The bad news is that series titles, however, can be trademarks, as indeed the CROSSING THE DELAWARE series is. But she then learns that, in addition to all things being fair in love and war, there’s fair use of trademarks, as well as First Amendment rights that may apply to Cleo’s trademark, right of publicity, and libel claims. Although at first Ro wanted to rely solely on truth as a defense, she also became knowledgeable about the First Amendment liberty she had to make highly unflattering, even false, statements about public figures, as Cleo was in her role as a well-known author.
A Dutiful and Undivided Loyalty
Just before the big hearing scheduled, Will reads online the self-represented papers that Ro has written in her defense. He is moved by her brilliance and passion for free and unbridled expression. He consults the guru of legal ethics, the senior partner at the New York firm of Obi, Wan & Canobi, and learns that he has no legal conflict. With Cleo’s army of lawyers gathered in the courtroom, Will marches through the door the moment the matter is called and announces he is now Ro’s advocate with no less than his undivided loyalty. Ro swoons. Will vanquishes Cleo’s forces and vindicates Ro. The judge rules decisively in her favor. Will sweeps Ro off her feet, out the courthouse doors and into their promising future together. Her first romance novel, The Will to Love, is published to critical acclaim.
Lawrence Townsend is the author of the novel Secrets of the Wholly Grill. Optioned for film, it’s a satire of the software industry, chronicling a mainstream software giant expanding into the barbecue business and how it would behave (very badly). The San Jose Mercury News invited readers to “imagine Florida satirist Carl Hiassen let loose in Silicon Valley…” His second novel, The Hot Monkey Love Trial, is a reimagining of the 1925 Scopes Monkey Trial but with biotech mischief at the center of a new “Trial of the Century.” It will be published later this year by Water Street Press. www.monkeytrialjuryroom.com