I’ve interrupted my regular posting schedule to bring you this important message.
On Sunday, well-known and well-liked blogger Leo Babauta of ZenHabits received an email from the lawyers of author Susan Jeffers, claiming that he had infringed on her trademark in one of his posts by using the phrase “feel the fear and do it anyway” — the title of Jeffers’ book.
That Leo had never heard of the book is, from a legal standpoint, supposedly not relevant. The fact that he was only repeating an intuitive phrase he’d heard from a friend on Twitter (to whom he did give credit in the post) does not excuse him from his offense. It is his responsibility to be aware that the words he used to convey his point had been rendered off-limits by somebody else’s choosing them for a book title, years earlier. Considering how many books and products are out there, I wonder how many of my posts contain book titles or slogans, and whether I’ve already got threatening letters on the way.
I won’t pretend to know anything more than absolutely nothing about trademark law, but apparently there are no provisions in the law for being unaware of an existing trademark. You just can’t assume that the specific order and combination of common-use English words you chose is not (literally!) the property of someone else.
It turns out that you can ‘buy’ exclusive rights to a phrase from the English language for about three hundred and fifty bucks. So it sounds like our language is slowly being purchased up and rendered unavailable for free use. According to law, the commercial value of words supersedes our freedom to choose what words best express ourselves, at least publicly.
Leo’s response was prompt and ballsy:
Her lawyers asked me to insert the (R) symbol after the phrase, in my post, and add this sentence: “This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission.”
Yeah. I’m not gonna do that.
And so far, the whole internet seems to be backing him. At the time of writing, his rebuttal post — brilliantly titled Feel the Fear and Do it Anyway (Or, the Privatization of the English Language) — has racked up 2500 Diggs and 450 comments, unanimously supportive of Leo. There’s nothing like an established A-list blog as a platform from which to make yourself heard™(Ericsson). I think it’s safe to assume that Ms Jeffers’ legal team did not anticipate the cyber-backlash they are currently facing. Leo’s got an army of over 100,000 loyal subscribers backing him.
So good for him. As it stands right now, it is not known what the lawyers of Ms Jeffers plan to do. But so far Leo isn’t budging. He could have quietly removed the phrase, which wasn’t critical to the post — and isn’t particularly brilliant to begin with — nobody would notice, and everyone would carry on. But it’s too important.
Even if this standoff does disappear with no fireworks, Leo has already detonated a mushroom cloud of publicity for his site, and plenty of negative press (if there is such a thing) for his detractor. Though some have hinted that he should pick his battles, others are calling his stubbornness pure genius™(Guinness & Co). I doubt it’s publicity behind Leo’s reason for taking a stand, but it sure has helped him to that end.
It’s not that Leo’s supporters don’t see a rationale behind trademark law, it’s just that nobody seems to think there’s a good reason to enforce the trademark here, other than opportunism or sheer humbuggery. Surely there is no malicious intent on the part of uber-nice-guy Leo to exploit a (supposedly) well-known book. All he did was exactly what he’s done to serve the internet community for two years: he set out to help people with a clearly-worded, honest and genuine article™(Anheuser-Busch).
Obviously we need to have intellectual property laws. But why be so territorial about it?
I would think different™(Apple Inc.) trademark owners probably have different policies when it comes to deciding when it’s appropriate to take action. I doubt any laws will change here, but surely the outcome could influence the fashion in which these tricky run-ins are dealt with in the future. Every owner of intellectual property, whether an individual or a corporation, has a choice of whether they are going to actually communicate with the person, or just skip that step and send in the legal department first.
I have never met Leo, but if you read his posts there’s no doubting his generous and understanding nature. It would have been easy for Ms Jeffers to have found a more amicable way to approach him with this concern. He has stated that he has nothing against her. According to his comments, his beef is not with her but with the lawyerly threat he received.
One of the principles I try to adhere to on Raptitude is to only write timeless content. I don’t like to offer time-dependent commentary on current events or viral internet topics-du-jour. But however this highly-publicized standoff unfolds, it will leave a lasting precedent: probably not the hard-worded legal kind upon which future court rulings will be based, but the subtler and more influential cultural kind.
Just imagine™(NEC Inc.) a world where an incidental mention of a trademarked phrase doesn’t trigger a hail of legal pot shots and billable hours. Maybe it just won’t be so socially acceptable after this current storm of disgust passes, as long as the winds get high enough.
As “current” as this event is, I still think it’s good to talk™(British Telecom) about it because it surely isn’t the first or last instance of hair-trigger trademark enforcement. After all, many of you are writers yourselves, and apparently, if you don’t carry a running inventory of every witty phrase that has ever been purchased, then you are at risk too. Hopefully you’ll get some polite warning shots before they send in the dogs. Next time it could be you™(National Lottery) I’m writing about. Or me.
Where do you stand? Lines have been drawn:
So, no, I will not be adding a Registered Trademark symbol to the previous post. And no, I won’t be adding a phrase of legalese to the post. And no, I won’t even attribute the phrase or link to her book, as I wasn’t referring to the book.
And no, I won’t remove the phrase.
I’d rather be sued.
Oh, and I’m not going to change the title of this post either. You’ll have to remove it from my cold, dead iMac.
I should note that I can freely reproduce lengthy passages from any of Leo’s posts, because he has released all of ZenHabits into public domain. But I’m citing him and linking him on my own volition because he’s such a nice guy.
A Call to Action
Changing laws is a slow and bloody process, and isn’t necessary here, but we can still change things on the more malleable cultural end. Social media culture can change standard procedure, and fast. Twitter alone is rapidly creating a more open, amicable internet culture; we’re getting there™(British Rail) so quickly because communication channels have been blown wide open.
According to the word on the street, Leo does not appear to have a firm place to stand legally on this issue. Some generous fans are even offering financial support in case it becomes a legal battle. I don’t know what to do to help other than use my modest internet presence to leverage as much attention towards this issue as possible. The more attention we can get to it, the less popular this type of knee-jerk phrasemongering will be.
So I ask a favor:
Protect our language from this casual erosion. Get even more people talking about this. Let’s get this ball really rolling. Help make it resoundingly uncool to deal so coldly with fellow writers. Let’s make things better™(Phillips Electronics) by letting as many people know about this story.
Stumble. Tweet. Facebook. Link. Write. Talk.
Use the green ShareThis button below to share this post any way you like, or click over to Leo’s post and Digg, Buzz, and Tweet it all over the place. If you don’t like the thought of your own work being thrown back at you with a standard-issue cease-and-F.O. letter, then let people know.
It’s never been easier. Don’t let this slide into internet passé while Leo is left with a tricky legal mess. Start clicking now. Just do it™(Nike Inc) before our beloved but fickle internet moves on to tomorrow’s headline.
Here’s a good soundtrack to your social media efforts. I’m ready when you are™(Delta Airlines).
Update: Lawyer/blogger Andrew Flusche wrote a post about this detailing the legal implications for Leo.
Here’s the key: Leo didn’t use the phrase as a trademark. Susan Jeffers doesn’t own the exclusive right to “feel the fear…and do it anyway.” She just owns the right to use that phrase as a trademark on certain goods and services.
Photo by Exfordy