Dear Storm Publishing,
Pursuant to rights under trademark infringement statutes, I am requesting that you cease and desist publication of the biography comic featuring my client Pop McSuperstar.
A cease and desist letter? It must be Monday. (and yes, one came in the mail on Friday!–although it is not important who it is)
Not to snark too heavily at these letters (because we take each request seriously), but as a publisher of biography comics, we routinely receive these demands from lawyers (regardless of merit) to stop the distribution of our title featuring this notable personality or that.And, we personally communicate why their C&D does not apply in these cases.
Now, on the one hand, I can understand why these letters come. The money machine behind these celebrities (or band) want to completely control the image of their product and any dollars made from such image. Problem is, they are often wasting their time. They are either ignorant of the law or think that I am.
Lawyers and licensing agents believe such books violate the trademark of their client. However, a public person’s appearance cannot be trademarked. Their life story cannot be copyrighted. Many times, the featured person is invited to participate or given an early look at the script and artwork. Nonetheless, we recognize that these comics are unauthorized and make no bones to conceal that fact.
When I publish a comic book, it is in the hopes that it makes money. I’d be lying if I said otherwise. However, in that I have chosen to publish a line of original non-fiction biographies, I am also look to put forward a professional, entertaining body of work on subjects that people care about. In most cases, I believe I’ve succeeded. Most of the subjects are flattered and even think it’s cool that they have been immortalized in this way. My office wall is decorated with autographed copies from some of the subjects. But to be fair, some don’t care to be “animated” and that’s okay too.
My team and I pick biography subjects because we think they have an interesting story. We don’t look to stir the pot, but sometimes legal representatives feel the need to get involved.
It’s no secret that one C&D letter (a few years ago) got widely publicized and all of a sudden the Internet was alight with gossip about lawsuits and dirty dealings. First up, a cease and desist letter is not a lawsuit. It is a request. Any person can write such a letter. You can write one to your neighbor to have their Christmas decorations taken down (especially if it’s February). But more importantly, I look at these letters as an invitation to discuss partnerships or further subject participation in our project. Sometimes this works. Sometimes it doesn’t, but I am obligated to publish the title anyway.
I do not wish too make light of any truly serious legal situation, but any legal mind worth their salt knows that unauthorized biographies are protected…even in comic book format. It has been tested in court several times; most notably with Revolutionary Comics back in the early 1990s. Boy band New Kids on the Block sued to stop the publication of a biography comic book. The U.S. District judge ruled “Bookstores are filled with biographies – both authorized and unauthorized – of public figures. And, while the subjects of such biographies may be offended by the publication of their life stories, they generally have no claim for trademark infringement…It appears that the First Amendment may trump any claim that the plaintiffs have for trademark infringement.”
The only concession Revolutionary Comics needed to make was the removal of the NKOTB logo; an item that is trademarked. For those truly interested in the details of this and other cases R ‘n’ R comics faced, Jay Sanford’s 2007 article in the San Diego Reader is a direct source: http://tinyurl.com/5soh6cc
Now as a publisher, I do not enjoy complete freedom with a celebrity’s name and likeness. I cannot publish a John Wayne Cookbook without the Wayne family estate’s permission, but if I choose to publish a biography of the Duke, I am within my First Amendment rights to do so. Likewise if I choose to publish a title featuring LeBron James, I can, but I cannot use the logos or wordmarks of the NBA or the teams for which he played. Moreover, if I falsely claim that James is a Communist spy, then I open myself up to potential libel claims unless I can prove my sources were legitimate. Hmm..James Bond by day, sinking three pointers from beyond the arc at night…sounds like the premise of an interesting non-fiction series.
I want to be clear, I am not making excuses or trying to be defensive over the choice to publish biography comics. I’m not sticking my tongue out at lawyers, nor am I flaunting my legal protection. I simply want to provide a little insight on part of the business aspect of running a publishing company.
Gotta go, that must be my lawyer on the phone!