Space Marines: bullying goes nuclear then MELTDOWN!
by Nalini Haynes
UPDATE: the book is back up on Amazon. Games Workshop did NOT back down; the Electronic Frontier Foundation talked to Amazon on Hogarth’s behalf. Games Workshop has come under close scrutiny as a result of its allegations; as a result, Games Workshop has opened itself up to allegations of breach of copyright, including 2012 artwork for its Space Marines in Warhammer 40K, which artwork is very similar to artwork for Starship Troopers – a Heinlein novel about space marines predating Games Workshop – which artwork is dated 1987. The details of the updates including pictures are after the original article.
UPDATE the SECOND: Maggie Hogarth, the author of Spots the Space Marine, talks to Nalini about why Maggie wrote the book, her decades-long involvement in science fiction and fantasy fandom and wanting Hispanic Moms to have space marines’ toys.
If you’ve been on the webz this week you will have noticed considerable outrage directed at Games Workshop who have claimed to own the name ‘space marine’ as if a space marine is an identifiable individual character. In December Games Workshop issued a takedown notice then Amazon stopped selling Spots the Space Marine by M.C.A. Hogarth.
M.C.A. Hogarth tried talking reasonably to Games Workshop, but this didn’t fix the problem. Then the interwebz exploded. Wouldn’t it be ironic if a grab for more money and power backfired because the science fiction community backed one of its own against a megacorp?
For those who came in late…
Wikipedia lists appearances of Space Marine in fiction, showing 7 authors – including Robert Heinlein – used the term ‘space marine’ before Games Workshop was founded in 1975, let alone trademarked the name.
Games Workshop put a trademark on the term ‘space marine’, claiming rights to something that had been around for 43 years already. In the United States this trademark was for IC 028. US 022. G & S: 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, sold therewith. This trademark does NOT include space marines in literature, movies, television… (source: M.C.A. Hogarth).
On 13 December 2012 M.C.A. Hogarth posted about her early Christmas present from Games Workshop and Amazon:
Today I got an email from Amazon telling me they have stopped selling Spots the Space Marine because Games Workshop has accused me of infringement on their trademark of the word ‘space marine’.
So Hogarth was accused of trademark infringement although Games Workshop doesn’t actually own the rights to the term ‘space marine’ in literature in the United States, the country in which Amazon is based.
Hogarth goes on to say that she got the term from Heinlein and that Amazon continues to sell other books with ‘space marine’ in the title, for example, Featherfoot Space Marine. Hogarth assumes that Games Workshop picked on her because her kickstarter made the book more high profile than the average indie book; I wonder whether Games Workshop deliberately singled out someone without the funds to fight the legal battle.
Side note: I wonder if Games Workshop got any ideas from their book Treacheries of the Space Marines…
On 3 January 2013, Hogarth posted:
I’ve had a phone conversation with Games Workshop about their issues with my novel…
Games Workshop has trademarks in the US, UK and Europe. The US and UK trademarks cover only games and miniatures, as I mentioned previously. The European trademark, however, includes Class 16, which reads:
Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers’ type; printing blocks
Games Workshop brought their complaint to Amazon Kindle Publishing UK based on this class in the European trademark, which caused Amazon Kindle Publishing (in the US) to block my e-book in all the countries it was being sold. The paperback was not affected at the time of the complaint and has never been blocked from sale.
So Games Workshop has claimed copyright over the term ‘space marine’ in paper books but then isn’t blocking the sale of the paper book, ‘only’ the sale of the ebook, and is blocking the sale of books in countries not covered by the European trademark. Hmm. Monty Python, anyone?
Hogarth’s January post continues:
At this point, the e-book remains blocked from sale in all countries. Spots was my homage to Heinlein and the greats of science fiction. I contributed some of the profit to charities benefiting wounded soldiers (notably the Wounded Warrior Project). The e-book edition of Spots is where most of the money comes from, and where most of my readers first encounter the story. I don’t appreciate having to defend my use of “space marine” to describe a cookie-baking mom no one could mistake for something out of Warhammer 40K.
Then Hogarth asks for help with international lawyers.
The saga continues…
On 5 February, Hogarth posted:
To engage a lawyer to defend me from this spurious claim would cost more money than I have, certainly more than the book has ever earned me… 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… they’ve chosen… 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…. the costs of beginning legal action start at $2000 and climb into the five-figure realm when it becomes a formal lawsuit.
I’ve been here. Burbank Homes took me to court because, after being paid in full, they refused to comply with the contract to build my house and the Building Code of Australia. I represented my husband and I in court against a solicitor and a barrister and I won; we were even awarded most of our costs (this is extremely unusual in this particular court). The problem is, this particular court is set up to be accessible to the lay person. If the ‘sitting member’ (judge) had been in a more formal court, I would have lost just on legal technicalities that were beyond my ken. Hogarth NEEDS real representation from awesome lawyers to win.
We asked Hogarth via email to clarify the situation — and what, if anything, people can do to help. She responds: “…When I called Games Workshop and pointed out previous books using the word “space marine,” they told me their grounds for complaint was based on the European trademark (which is not valid in the US). I explained that, and was told they believed their publication of novels and e-books awards them a common law trademark in America. This would only work if there weren’t other authors predating them who had used the term — they’re the ones, then, that would have the right to the common law trademark…”
Iain Triffitt says Games Workshop’s trademark on space marines in miniatures came AFTER this Space Marines game. Apparently the original of this non-Games Workshop miniatures game was released in 1977 although the linked version was released in 1980; both predate Warhammer’s space marines, which where released in 1983.
— Iain Triffitt (@jryderau) February 7, 2013
Therefore even Games Workshop’s claim to space marines in tabletop games is a grab for a pre-existing title.
Reactions from the science fiction community
Paolo Bacigalupi said:
…I have decided to boycott them, and their products. Science fiction thrives because lots of people get to play with ideas, whether that’s cyberspace or space marines. GW’s attack is an attack on science fiction. Oh yeah, and it’s also absurd.
John Scalzi tweeted lots, humorously.
For years, there have been stories about Games Workshop being trademark bullies and sending threats to people who use the term “space marine” in connection with games. But now that they’ve started publishing ebooks, Games Workshop has begun to assert a trademark on the generic, widely used, very old term “space marine” in connection with science fiction literature…
* Amazon didn’t have to honor the takedown notice. Takedown notices are a copyright thing, a creature of the Digital Millennium Copyright Act. They don’t apply to trademark claims. This is Amazon taking voluntary steps that are in no way required in law…
Cory’s blog is worth reading in full; I recommend you wander over and take a gander if you haven’t already.
Surprise, surprise, Amazon WHO SHOULD KNOW BETTER have honoured a takedown notice although it’s not applicable in this situation: Copyright and Trademark law are SEPARATE.
Unless you’re brand-new to this website, you probably have an inkling of my views regarding Amazon…
…Games Workshop… has branched out into handling its own ebooks and therefore believes that trademark carries over into the literary world as well…. That said: Games Workshop, really? You know, a simple search on the term “space marines” over at Google Books shows a crapload of prior art for “space marines” in science fiction literature… There is no lack of evidence that the phrase “space marines” has been used rather promiscuously in science fiction literature up to this point. To argue, as Games Workshop must, that the phrase “space marines” has a distinctive character in science fiction literature relating only to their product involves, shall we say, a certain studied ignorance of the field…
John Birmingham said:
…Games Workshop had not only claimed a trademark over the utterly generic term ‘space marine’ but they had begun to enforce it…by picking on a small, relatively helpless victim first…This is nothing more than a shakedown. By breaking a small player like this, they hope to establish precedent to go after a bigger payday from others with more heft in the market… I would never have bought Hogarth’s Spots the Space Marine because, you know, what a title. But I’m feeling now as though I must.
This isn’t over. Stay tuned to your regular broadcast channel, the interwebz…
Games workshop posted a really ambiguous response to this debacle on Facebook.
Games Workshop owns and protects many valuable trademarks in a number of territories and classes across the world. For example, ‘Warhammer’ and ‘Space Marine’ are registered trademarks in a number of classes and territories. In some other territories and classes they are unregistered trademarks protected by commercial use….To be clear, Games Workshop has never claimed to own words or phrases such as ‘warhammer’ or ‘space marine’ as regards their general use in everyday life, for example within a body of prose… Trademarks as opposed to use of a word in prose or everyday language are two very different things. Games Workshop is always vigilant in protecting the former, but never makes any claim to owning the latter.
“Unregistered trademark” – WTF?!
So why exactly has Games Workshop gone after this particular novel and author? The series is NOT a rip-off of Warhammer 40k. Obviously Games Workshop is not sharing.
Spots the Space Marine is available again on Amazon
Spots the Space Marine is available once again on Amazon in paper and kindle format. At this stage I don’t know if this is because Games Workshop has withdrawn its takedown notice or if Amazon is reacting to the outrage on the webz. Anything that has been taken down before can be taken down again, so this is still a potentially volatile situation.
…and for a company seemingly so keen on trademark infringement they don’t seem too worried themselves about … er….emulating … other peoples’ ideas or work… https://fbcdn-sphotos-c-a.akamaihd.net/hphotos-ak-ash4/480167_10151470058444066_1891564589_n.jpg
When I was at art school I was told that the 30% rule applied: no artwork should exceed 30% of content or reference of anyone else’s art; to exceed 30% opens the second artist up to allegations of copyright infringement. I’d say that Games Workshop has not only pinched the idea of Space Marines but they are also well in excess of 30% of the content of the original artwork on the left.
The artwork on the left is one of the current covers for Starship Troopers, still on sale on Amazon.
But Games Workshop won’t allow an independent author to call a character a space marine.
Hogarth tried to resolve the dispute in a friendly way, but Games Workshop refused to withdraw its complaint. So she reached out for help, including to EFF (and thanks to the many folks, including Wil Wheaton, Popehat, and Cory Doctorow, who helped spread the word). We were able to intervene and, to Amazon’s credit, the company reviewed the claim and restored the book…
This bigger problem is not going away anytime soon. Users, let’s keep standing up to trademark bullies, and helping others do so, too. Intermediaries: take a page from Amazon here, and take the time to help your customers protect themselves. An easy first step is to make sure your trademark takedown policies include easy-to-use counter-notice procedures.
So Games Workshop did NOT back down; instead this was a win for social media and the guys at the EFF.
The EFF is the same organisation to which I referred in this news wrap, who are stepping up to the plate to protect podcasters from Personal Audio who have laid claim to a patent for an idea rather than a technology: Personal Audio’s patent is for a “system for disseminating media content representing episodes in a serialised sequence.” I’m curious as to when Personal Audio is going to start suing radio stations for disseminating media broadcasts
The Electronic Frontier Foundation has indicated its concern and willingness to help. There are good guys out there. It restores my faith in the human race.
General consensus from those supporting a more open source approach to space marines seems to be that even in the Games Workshop lore, ‘space marine’ is a generic term. It is the ‘Adeptus Astartes’ title for a space marine that is unique to Games Workshop. If GW’s complaint was limited to use of the Adeptus Astartes title, then the community would be much more sympathetic to Games Workshop.
FakeTSR unearthed Space Marine art dated 1936 with the words ‘The Space Marines and the Slavers by Bob Olsen’ on the cover of Amazing Stories, December 1936. Thanks Pauline Grice for bringing this to my attention.