Warhammer 40k‘s publisher Games Workshop has exercised its legal claim to the term “space marine,” most recently when it caused an e-book to be pulled from Amazon.com. How did this happen, and how does a corporation own a term so generic it is basically at this point a cliché?
These are the facts: Games Workshop does indeed own the trademark on “space marine,” at least in terms of “board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint,” which makes sense, since that is Warhammer’s bread and butter. And indeed they have a space marine in their tabletop game and have had one for years. Warhammer has a legitimate right to not be copied and aped by anyone who wants to rip them off.
But now to go after a self-published novel called Spots the Space Marine: Defense of the Fiddler simply because they use the term space marine? That’s ridiculous. The author, MCA Hogarth, states in a blog post explaining it all:
In their last email to me, Games Workshop stated that they believe that their recent entrée into the e-book market gives them the common law trademark for the term “space marine” in all formats. If they choose to proceed on that belief, science fiction will lose a term that’s been a part of its canon since its inception. Space marines were around long before Games Workshop. But if GW has their way, in the future, no one will be able to use the term “space marine” without it referring to the space marines of the Warhammer 40K universe.
I used to own a registered trademark. I understand the legal obligations of trademark holders to protect their IP. A Games Workshop trademark of the term “Adeptus Astartes” is completely understandable. But they’ve chosen instead to co-opt the legacy of science fiction writers who laid the groundwork for their success. Even more than I want to save Spots the Space Marine, I want someone to save all space marines for the genre I grew up reading. I want there to be a world where Heinlein and E.E. Smith’s space marines can live alongside mine and everyone else’s, and no one has the hubris to think that they can own a fundamental genre trope and deny it to everyone else.
I tend to agree. The problem is that the little guy does not have the money and lawyers to fight back. So another corporation is given another right just because they have deeper pockets. This sets a troubling precedent. However, short of James Cameron or the estate of Robert Heinlein coming in and fighting the fight, it seems like they win.
Which is total bullshit.
And here is why. As noted intellectual property professor, lawyer, theorist, and activist Lawrence Lessig has put it (I paraphrase): copyright laws are there to incentivize creative endeavors. It allows authors, inventors, artists, musicians to be able to keep others from ripping off their creative work and marketing it as their own. But Warhammer trying to corner the market on space marines?
It does nothing of the sort. In fact it disincentivizes creators who might want to write a story involving some sort of space marine. This isn’t Mickey Mouse or Harry Potter we’re talking about. No one is ripping off those characters and trying to market them as their own. But for Disney or JK Rowling to say that no more books or cartoons or movies can ever be made involving anthropomorphized mice or boy wizards is ludicrous, and that is what this is tantamount to.
Let’s say they continue on this path of not letting anyone else use “space marines.” Does that mean no more Alien movies? Or Starship Troopers derivatives? What about the upcoming release of the Aliens: Colonial Marines video game — funny how Games Workshop isn’t trying to shut that down, isn’t it? Or the Blu-ray release of Prometheus? Or any future HALO games? Starcraft? Of course not– because they’d get their asses laughed out of court and counter-sued for damages.
Because the concept of a space marine is so abstract it’s almost like trying to claim a trademark on breathing air or a guy falling in love with a girl. Or, as said before, talking mice and boy wizards.
Look Warhammer– no one else gets to make tabletop miniatures of space marines that could be used in a game format, ok? I’ll back you up on that. You make a fine product that I have many friends who enjoy.
But back off of this.
We need to preserve the rights of the little guy to create. I’d much rather elevate the right of an individual who self-publishes or a small publisher to ensure they get to reap the benefits of the creative process than protect abstract copyrights and trademarks the very idea of which are quickly becoming relics of the 20th century.
Several weeks ago, I published the hardest In Memoriam article I’ve ever had to write– one for Aaron Swartz. Aaron was a pioneer in the idea that open information, open networks, and a better copyright system was good for humanity. It was why he co-founded Reddit, it was why he worked with Larry Lessig on things like Creative Commons licensing. And it was ultimately what led to his death, after the overly zealous prosecution by US attorneys on a case where he attempted to liberate the bound periodicals of the JSTOR online library used by many universities. I know where Aaron would come down on this case.
Right now, Ms. Hogarth is looking for a lawyer who can take on her case pro bono. She is asking people to spread her story as widely as possible in hopes the attention will get her what she needs. Already her blog has received over 200 comments, so please do what you can to make a difference.
Do it for Aaron. Do it for every author who has ever worked hard to publish their own work. Do it to protect the concept of space marines so that we can all enjoy them for decades to come. And do it because it’s the right thing to do.