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  • Writer's pictureChristopher G. Moore


Copyright law is complex. That is a sentence that few would wish to contradict. The current lawsuit involving Harry Potter author and a fan writing an lexicon of Harry Potter terms is a good example of the struggle between those wishing to expand copyright protection against those who wish to see limits placed on authors’ rights.

As a general rule, a copyright extends for the length of the author’s life and expires 70 years after his or her death. The difficulty arises because each country has its own copyright laws and they are not always consistent. Further, the length of copyright duration has been increasing over time. The time expansion is no surprise in the United States where large vested corporate industry (e.g., Disney) have successfully lobbied to extend the length of copyright to the current 70-year period.

I came across a blog which addressed the issue of Zane Grey’s heirs who apparently sought to expand protection after the expiration of the copyright period by taking out a trademark on the name “Zane Grey” on the assumption (so it seems) the trademarked name would equip them with a legal basis to stop anyone from publishing Zane Grey’s books that fell into the public domain.

The public domain is that wide-open space where anyone can tread without fear of paying a toll. Once a copyright ends, the book, article, or other written expression is said to fall in the public domain. No one publishing Charles Dickens needs to track down his heirs and pay a royalty for publishing and profiting from a new edition of Great Expectations. Zane Grey’s books are about to fall into public domain (if indeed some of them may already have done so).

In most cases, an author’s heirs may have inherited rights to the copyrighted work of the deceased author, but in the vast majority of cases those rights are like Monopoly Money. The rights have no more value than monopoly money and can’t be used to purchase anything in the real world. The commercial value of the overwhelming majority of books will have succumbed to market forces long before the author’s death. The author is often at the graveside of his or her book. It’s called a remainder bin. Many bookshops have them. Think of the remainder bin as the publisher’s funeral for books that have died (in fact there are many reason why books are remaindered and doesn’t necessarily mean it has become extinct but most of the time that is a safe bet). Thus most author’s have ample time during their lifetime to mourn the commercial death of their work. They live to see their little Nell entombed. It is only the rare author whose work will have commercial value after his or her death. Zane Grey is one such author.

His heirs now wish to continue the payments from publishers. No one can blame them for trying. Who wouldn’t like receiving a nice cheque for a publisher every six months for a substantial sum? Time to call in some creative lawyers to see if they can keep the milk train running. One of these bright bulbs must have said, “Let’s trademark the author’s name. That will give us the stick to beat back publishers who bring out new editions of the work.”

So why doesn’t the trade marking of Zane Grey’s name work the magic of extending legal protection to the underlining rights to his books?

After reading about this case on a RichardsWheeler’s blog I asked my friend Professor David Vaver, one of the world’s foremost legal authorities on intellectual property (and the recently retired Oxford IT professor) about the Zane Grey case. He’s replied at length. Here is Professor Vaver’s first reply. You can go to RichardsWheeler’s blog to find additional (and enlightening) material on this subject from Professor Vaver.

“This is an old wheeze and it doesn’t work. I do not say that the heirs may not try to use it in the way you describe, but the greatest expectations of the heirs of Charles Dickens could not stop your publishing Great Expectations as “by Charles Dickens” even if they have somehow managed to get the CD name registered (wrongly) for books by CD. Britain’s highest court said in 2003 that, for example, you can (if that is your thing) label a genuine record of songs by Bon Jovi as “by Bon Jovi” because it truly describes the performer of the contents, even if Bon Jovi is registered as a mark. A trade mark owner can stop only the use of the mark to refer to the trade origin of the goods - i.e., if you use “Zane Grey” without the mark owner’s authority to refer to the trade origin of books in the same way as one uses Penguin or Random House to refer to the trade source of books that emanate from those houses. See R v Johnstone, especially at paras. 35 ff. (”

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