Pride and Prejudice and Zombies: The Classic Regency Romance – Now with Ultraviolent Zombie Mayhem!
I use this book as an example of what’s possible in a land free of trademarks, and where copyright has expired. Jane Austen is an odd phenomenon, wherein the 19th century and the Internet meet – and since Ms. Austen is long past such earthly concerns as royalties, others enjoy – and sometimes profit – from her legacy in the form of books like the above, or movies like Clueless and Bride and Prejudice. For fans of things more recent than Jane Austen, there are two legal roadblocks to issuing forth the products of our creative urges based on someone else’s creative urge: trademark, and the very distinct from trademark – copyright. There is also a third factor involved: intent. Whether or not you come from a pure place may not matter in the eyes of the law, but it may well matter to the thinking fellow fans that might also partake in your work.
Trademark is a tricky thing, especially when it runs into another tricky thing: fandom. For instance, I’m a Doctor Who fan. I’m an American Doctor Who fan. Funny thing about British nerds: because as a rule they’re better dressed than us US folks, they’re not too likely to have T-shirts. So what’s an all-American Doctor Who fan to do? DIY baby – that’s how we come up with stuff like T-shirts with oblique references to Weeping Angels and Bad Wolf perfume. Now BBC knows a cash cow when it has one, and if fans use the Doctor Who logo or affiliate these goodies without licensing, we are violating their international trademark. BBC gives us awesome, and they do deserve their cut. However, licensing agreements are prohibitively expensive and fans get a thrill off of passing encoded messages to each other – so instead of co-opting David Tenant’s face (or even his Converses) we instead go for turns and phrases that are recognizable to other fans as references to the show but do not adopt any image licensed and trademarked by the BBC. Thus “Weeping Angel” shirts (or even one that just says “Blink”) and Bad Wolf perfume – it is absolutely inspired by Doctor Who, but uses no image from the show in its marketing and sale.
Trademark is especially tricky in the land of perfume inspiration. Perfume names may be trademarked, but book titles may NOT be copyrighted. So if I wanted to write a book titled “Doctor Who” and used my own logo/image and it was NOT about a time traveling doctor, but about say a mystery OBGYN, BBC might try to do something but likely the lawsuit would be dismissed as frivolous. (And really, it would be a tragically stupid marketing idea so we’d all get what we deserved on that one.) Perfume recipes, like alll bath, body and food recipes can NOT be copyrighted – we have no protection for our formulas. I can make tomato sauce from a Betty Crocker cookbook and sell it as my own – the Crocker company would have no right to a cut unless I used the name Betty Crocker in the marketing. The same can happen with perfume – leaving trademark as our only, and very limited protection. It’s a delicate dance – drawing from the things we love that are also living. It’s one thing to make a perfume based on Edgar Allen Poe, but if you’re a fan of something more current – like Hello Kitty – it’s a very different situation. To refer to is fine, but to co-opt is definitely not.
Every so often you’ll see a flair-up on Etsy – there are sellers whose entire bread and butter comes from essentially trademark violation. Whether you choose to look the other way or not is up to you; I personally prefer to do a sidestep – or to look carefully at where the creation came from. If it’s “Oh, well I’ll make this because Hello Kitty is popular,” I tend to respect it far less than a place of “Because Daria is awesome.” There needs to be respect for the original creators, but also for the fans – especially in cases where fan goodies are not something readily provided by the original source.
