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.
Let’s Help
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.
*standing ovation*
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.
An excerpt:
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
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Great post!! I read and commented on Leo’s blog and I am all about supporting Zen Habits. I commend you for spreading the word on your own blog. :)
I love it! I particularly enjoyed your use of trademarked phrases scattered throughout. Classic! =-)
I do wish people would pick their battles (meaning Jeffers, in this case). I don’t know a thing about trademark law but it seems fairly evident that Leo was not trying to steal her phrase or profit from her work. Like you said, maybe a simple person to person communication would have been a better way to clear up the issue.
It will be interesting to see how this thing unfolds. I’ll be clicking away… tweeting this right… now.
Good stuff David, and scary-relevant. If you are looking for any other spine-tingling topics to write about in the future, spend some time reading about “libel tourism”
I’ve now done my tweets and facebooking and digging for this article. I’ve also summoned Rage Against The Machine!
Right on, thanks Josh (and Positively Present!) I just took a look at the Libel Tourism article on wiki. It is scary.
RATM is another recommended soundtrack :)
Nicely written David without being aggressive. I’ve been reading through the comments on Leo’s site and I’m a little disappointed that a majority of them are personally attacking the author. The issue I believe Leo (and you) has is not with her specifically but the laws surrounding TMs of common words and phrases and how and when they are allowed to be enforced.
I appreciate Leo bringing this to mainstream only because I was a bit foggy about how far reaching TM enforcement could be, and I realize that ignorance is no defense. So this is definitely good to be at least aware of! I sincerely hope Leo can resolve this amicably with the author as I feel it’s gotten way out of hand (in turning into a personal attack), which I don’t believe was his intention in the first place.
I’m of two minds about this issue. On one hand, I deeply admire and respect Leo for standing up for what he believes is right. On the other hand, I’m just not sure he *is* right.
As a musician, and a songwriter, I am deeply opposed to the illegal downloading of music and movies on the internet. Even though the artists get shafted by the recording studios, that’s still how they make their money, and if you like what you hear, you should support the artists. I think that the artists should all fire their labels, but until that happens, people should pay for music.
In the same vein, I am also a writer, who hopes to have a book published one day, and to make money from that book. Part of making money is marketing, and owning the trademark to the title of your book is an important part of that. And Mrs. Jeffers owns the trademark to her book title. She has a right to earn money from her work, and to a large extent, defending the title of that book from trademark infringement is necessary to make money.
Whether she “should” be able to trademark the phrase or not is irrelevant. The fact is, she owns the trademark. Leo, and everyone else, should respect her rights and her contribution to society by respecting her trademark.
Great post, David. This whole situation is a great example of how messed up the system has become. Trademarks were created for one purpose and unforunately that purpose was abused so the laws became tighter and more strict.
Corporations used a lot of their power to help influence the courts to rule accordingly because a couple of judges used to sit on the boards of those same corporations. So basically this whole situation is a reflection of how we have allowed such things to occur.
Ignorance of laws allows those with more money and power to shape those laws to their benefit. Only when someone who is not a corporation is effected, then there is a wake-up call.
I commend Leo for taking his stand because it has brought attention to the issue and I truly pray with all my heart that the lawyers back down.
Hi everyone. I’m at work so I can’t give you detailed responses at the moment, but in the mean time, check out this post by attorney/blogger Andrew Flusche.
“We own the idea you thought was yours.”
I’m still waiting for the Chaucer estate to sue Shakespeare for ripping off Troilus and Cressida.
@ Rev. Monkey — Shakespeare was such a hack :)
@ Nadia — Hi Nadia. Wouldn’t it be nice if the ‘spirit of the law’ were kept in mind, as a custom? Just because someone can take legal action doesn’t mean they should. I hope it turns out well for everyone involved.
@ Jay — I agree but I would not compare this to piracy of any kind. He just used an intuitive phrase that does not belong to anybody. I know trademarks must exist, and I don’t think there’s anything wrong with retaining the trademark of your book title, but what threat does Leo’s use of those words present to Ms Jeffers’ interests at all? I hope a new precedent of trademark etiquette is set here.
I wonder if Bob Marley’s heirs will sue me.
@ Sherri — Yes, Sherri, I’m also disappointed with some of the aggressive attitudes in the comments. Their hearts are in the right place, I guess; they’re just defending a man who has done nothing wrong. But I don’t think they’re helping anyone. They’ve left over a hundred scathing reviews of the book on amazon, and I doubt many of them even read it. I really hope none of my readers took my “call to action” to mean I wanted them to go out and attack someone.
Great post David, and thanks for making me aware of this issue. Somehow it passed me by – and I used the same phrase in a post a few days before Leo did!
I see where Jay is coming from, but I don’t agree that applies in this case. As I see it, Susan Jeffers isn’t losing any money by Leo’s (mine, or anyone else’s) use of the phrase. As you pointed out, it really isn’t a case of piracy and I feel that applying laws intended to counteract piracy in this instance is a bit of an abuse.
But then I’m obviously biased on this one ;-)
That’s not how *I* took it at all!! I thought you did a very good job in addressing the issue as opposed to condoning or encouraging the “seek and destroy” mentality that others appear to have taken. I am shocked at the number of negative reviews on Amazon in response to this. Like you say I’m sure they haven’t actually read it. Comments from those who have read it say it’s a great book. Too bad really, but like you responded to Nadia maybe this is the first step in the personal development niche to keeping in mind the ‘spirit of the law’ when it comes to these sorts of issues. In the end we all largely want the same thing…to help people.
@ Lisis — Sorry your comment got caught in the spam folder! Thanks for your feedback and your clicks.
@ Sherri — Time will tell. I haven’t heard any developments today.
@ Hilda — Hi Hilda, welcome to Raptitude. You know, I think both parties might come out of this in a positive light, with plenty of free publicity, if Jeffers doesn’t play hardball.
David,
I really got a great laugh out of all the TMs in your post!
To be honest, I don’t know where I stand on this issue because I haven’t heard both sides of the story. I really only know Leo’s side.
Good point, Roger. We can only assess what we can see.
I’ve been thinking about this all day long, in the midst of being insanely busy at work, and one thing that I have realized is that I am even more guilty of this than Leo is. Even more guilty, because I have done it intentionally. Many of my blog posts use the titles to songs as the post title, and I never give credit to the artists in my titles. When I quote from songs in the posts themselves, I always give credit there, but never if it’s just used as the title.
I do it as a tribute, an homage to some of the songs and bands that I really enjoy. But regardless of “why” I do it, the fact remains that it is trademark infringement (at least as far as my limited, err non-existent knowledge of the law can tell).
I wonder if the “fair use” clause that is sometimes used in copyright defense can be applied here (to Leo’s case, I mean). I *do* hope that this is resolved according to everyone’s satisfaction, without dragging it to court.
In my last comment, I was wrong to liken it to piracy. Thanks for calling me out on that. Sometimes, the fingers fly faster than the brain :) However, I can still see her point, and I think it’s a valid one. It’s just now, I can “more” see that Leo has a very valid point, too.
I do the same thing, and I don’t really worry about it. If someone has an issue with a phrase I use, they can easily contact me. I’m not going to walk on eggshells, because I don’t think I’m putting anyone out or riding anyone’s coattails. I don’t think you can always pre-empt this kind of conflict because none of us are aware of every trademarked phrase, so it makes sense for the offended party to simply contact the other one, before getting all bothered about it.
I didn’t know about the “fight” that was going on. So thanks for reporting it here. In my opinion, it is ludricrious to have trademarks for the English language. It’s not as if the phrase contains new coined-up words. Anyone can have access to the same source of inspiration. No one is better than the next.
It seems really silly to me the way the lawyers approached Leo and for what. I am all for copyright protection but then it has to has it limits. The question is who decides what the limit is? It becomes a subjective matter and different people will have different points of view. Still I do believe that sanity and common sense should be given a chance to decide so.
Good post. I am stumbling and tweeting it.
@ Sunny — Three cheers for common sense!
@ Evelyn — I agree Evelyn. How anyone can have exclusive rights to part of a language, I’ll never understand.
Hi David,
I just read your comment on my post about this issue, titled “Feel the Fear and Do it Anyway: the Allure of Taking Someone Down.” http://tinyurl.com/cl6ljc (Thank you for providing the link to this post in your comment!)
On my blog I chose to explore this topic from another angle. However, I’m happy to chime in on the trademark issue, as well. I admittedly know nothing about trademark laws. From my limited understanding, I’ve gathered that writers/speakers who profit from their work are asked to attribute the idea “feel the fear and do it anyway” to Susan Jeffers because she popularized the concept in her book and then sought legal protection for the idea.
On the one hand, it seems asinine to claim ownership of a phrase. On the other hand, if the law allows artists to own and protect ideas they’ve originated, then I believe Ms. Jeffers’ lawyer was acting within their rights.
I found it amusing how you included all the trademarked phrases in your post. I appreciate that you’ve gotten people thinking about the laws in place, and perhaps motivated to do something to change them. As long as we all keep our eyes on enacting positive change, ultimately I value this experience.
Incidentally, I hope Susan Jeffers make some kind of statement soon. She’s an old woman who has done a lot of good in this world. Though I don’t agree with policing language, I don’t think this one act defines her in any way.
Lori
Hi Lori,
I completely agree with you, and I enjoyed your post; I didn’t mean to ignore its unique angle in favor of my pet obsession with social media influence. I left my thoughts on the human nature side of it in your comments.
I don’t really take issue with trademark laws, simply because I just don’t know anything about them. My issue was with the litigious culture in North America, where it is socially acceptable to use legal threats as a first point of contact when there is a potential conflict of interest. I have no designs in changing laws, but I’ve been spreading the word about this shamelessly because I want to see if it will actually make a difference in how the next such case is handled.
Anyone who has read about this incident, and seen the extent of the backlash, will probably be more tactful if they ever accuse someone of trademark violation, not that those ends would justify some of the ‘means’ we’ve been seeing.
You made a great point; hundreds (thousands?) of people went out into cyberspace and cut down Ms Jeffers any way they could based on what really amounts to hearsay. I have nothing against her, and it is sad that Leo’s post is all most of her detractors know about her.
That said, I do take Leo’s word for it, and I think it’s an asinine claim, and I want a lot of people to hear about it.
I like to think that both of the parties will come out having benefited from this, publicity-wise, and I hope it strikes a blow for all of us against litigiousness. I know there is a lot of undue ill will towards Ms Jeffers, but I suspect her name hasn’t been mentioned this frequently in a long time. I bet her book sales spike.
Thanks for your thoughts, Lori, I really appreciate them.
Remember when everyone was buying up dot com names- I wonder if that will start happening with phrases too.
I have to wonder if her lawyer just sent out the email willy-nilly without her knowledge (in other words I am wondering if he is the a$$hole and her reputation is now suffering)
Hard to say.
I think it is too bad when famous people who do inspiring work get attacked for one small mistake they may have made. I have seen this on amazon- don’t buy her book she is a bi%^# at (insert conference, on the street, in a cab, whatever) Man, if I was forever remembered for every little thing I ever said or did that was a mistake I would be in big trouble! But I guess if you are a public figure you have to learn to have a thick skin.
That being said, it does seem petty and I would like to be able to write whatever comes to my mind- besides who knows how many phrases we have retained over the years that will come out in our conversational blog writing!
We really have no way of knowing how much of the language has been trademarked. Even “Bam!” and “That’s hot” have been claimed by Emeril Lagasse and Paris Hilton, respectively. If trademark claimants are always going to shoot from the hip like this, then the English language is already a minefield.
WOW, After I slept on it, I am really starting to digest the ramifications of all this! “That’s hot” I say at least a few times a day (toddler 2 years and a 10 month old) in fact my son just tried to grab my coffee as I am writing this… I feel a blog post coming on!
Hi David~
No worries! You make some excellent points here, and I’m glad to be part of this conversation :)
To my understanding, there was no legal threat; just a request from a lawyer. I don’t think they threatened to sue Leo, but I may be wrong. Even still, I definitely think the idea is a little crazy (owning a phrase).
I agree the era of social media sets some new precedents. One person’s voice can be far stronger than it ever was in the past, and–as we’ve seen–inspire an outrage that creates a huge blot on someone’s reputation. I am also curious to see how this effects the way people handle trademark violations in the future.
Leo mentioned on his post that Susan’s sales actually increased on the day of the incident. I didn’t see that coming at all! On the whole, I appreciated watching this whole thing go down because of all the important questions it raised.
But today is a new day, and a new topic to explore. :)
Lori
@ Lori — Yes, Leo did not use the word ‘threat.’ I hope this whole thing doesn’t put anyone out in any lasting way, and just teaches us a few things about human nature. The internet is revealing human nature at a rapid pace. I like it :)
@ Angie — Right on Angie, drop me a line when you post it.
Hi David
It’s interesting how the whole world is wondering why our financial system collapsed, but the answer is right in front of them…
We all try to add value to the world in one way or another, yet some seem to take more than they give, or in many cases take at the expense of others.
Still nevermind, those who are so worried about another person expressing themself (because they might feel less special :s) won’t experience any form of abundance until they learn a lesson- when one needlessly attacks another, one needlessly attacks oneself. (hopefully that’s original, but in the event that it isn’t, oh well).
Thanks for sharing your views, I read your blog everyday
Dhiresh
Hey Dhiresh, thanks for adding your thoughts. I suspect I have lots of readers who have never posted a comment. It amazes me to think that I have have many loyal readers whose names I will never know. I’d love to hear from you all :)
I see your first blog post was today too. Welcome to the blogging world, Dhiresh.
the world is a scary place sometimes. it’s easy to forget and to feel “free” when i’m posting (with abandon) what my sexual nationality is all over facebook or really getting into it on some forum somewhere. and then…BAM! things like this happen. i’d say that most of us are pretty conscientious (i.e. giving credit where credit is due) and there is a nice sense of community amongst bloggers, but because of the world we live in, the governments we elect, and the value placed on ownership and quantity, it’s not surprising that this happens. i’m sure a lot of people would be scared by the threat of legal action and erase their post immediately. and that sucks because they don’t have to. there is a lot of good information out there on the subject, read up, follow up, and get your word out there!
I think I’ll just continue to post with abandon and see what happens :)
Are© you© friends© with© Jeffers©?
’cause© I© cannot thinkâ„¢ of a
betterâ„¢ advertâ„¢ for her than this postâ„¢.
Why kick against the pricks? (sorry, but that
phrase is way beyond any copyright or
trademark limitations).
Sorry, attempt at humor maybe lost since the
trademark symbol seemed to drop out. And I
don’t actually think you are friends with
Jeffers. Keep writing with abandon, since
it’s obvious you write from the gut and
are above suborning.
Haha… I’m happy to give Susan Jeffers™ free advertising. It doesn’t cost me a thing.
Thanks for your comments Roger!
That’s right. And the only issue about
copyright is provenance. If anyone used a
phrase at any time in prior history and that
can be demonstrated by production of provable
print, that makes claim void.
We are a ‘cut and paste’ generation,
and the idea about ‘modules’ of phrase or
even individual letters rather settles the
matter once and for all until some board or
panel with the force of law can determine:
only this many words in sequence can be
used to determine ‘unique’ phraseology
worthy of patent or ‘copyright’.
Who owns the copyright for ‘In the beginning’?
Or: “Once upon a time”?
Parsing issues and editorial deliberation over
potential lawsuit over ‘proprietariness’
concerning even ‘genius’ writing has probably
shut the world out of many great ‘pastiches’
or ‘editings’ of prior works into better
forms.
Many scholars have argued that Bach
was simply a ‘re-writer’ of priors. Same
with Shakespeare (or choose your ‘actual
writer(s)’ of the sonnets and plays).
How many paintings of the Annunciation
existed before a Da Vinci made yet another?
Squeeky wheel gets the oil, and palms
get oiled and, maybe, the original artist:
not known at all.
<P
Thanks for suggesting I read this Dave. Good job! I totally agree that it’s absolutely stupid that you can pretty much get sued by accident these days and that copyright laws seem to have gotten a little out of hand. It’s just a phrase, after all. Brand names I can understand, media I can understand, but a phrase is a little ridiculous. If it’s use is somehow meant to earn a profit, then fine put the (R) in there but otherwise leave the poor guy alone!
Look homeward, Angel, because your problems
are gone with the wind. If you continue to
have problems, leave it to beaver to gnaw
the cords of bondage or trust in 12 angry
men.
Either way, don’t worry: be happy!
Wow, I have heard that phrase since I was a kid and I am 55! It is sad that someone who is trying to tell people how to get past the fear is so fearful she can’t share a phrase that is as common as “raining cats and dogs”. Geez
This EXACTLY happened to a client of mine today!
Why waste time doing this? Write another book!
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