Self-publishing has a lot of advantages and just as many countervailing drawbacks. The biggest advantage is, of course, you get to be your own boss and can publish whatever you want to, without some publisher taking a cut of the money.
But the dark side of this freedom is that it can leave you vulnerable if some big company with money and lawyers decides it doesn’t like what you’re doing. And even if their claims are completely outlandish, it will cost you money you don’t have—more money than your book will ever make—to fight them, and you don’t have any guarantee of getting it back.
This is the situation that self-publishing author M.C.A. Hogarth found herself in when Games Workshop, publisher of the role-playing game Warhammer 40,000, objected to Amazon about her book Spots the Space Marine, resulting in Amazon pulling the book from sale. But the objection wasn’t due to issues of copyright or plagiarism (as with the author who thought it would be safe to self-publish her own Star Wars fanfic). It was because she had the temerity to use the term “space marine.”
Although “space marine” has a long and storied history, most notably involving Robert A. Heinlein’s novel Starship Troopers, Games Workshop succeeded in registering a trademark on the term in 1995—mainly covering the use of the phrase in tabletop and video games, but IP lawyers point out the trademark also extends to published works. As we’ve reported a couple of times, Games Workshop has published a number of Warhammer-based tie-in novels, including as e-books and audiobooks, and it feels this gives it a “common law trademark” on the term.
Hogarth talked to lawyers, but even getting started on fighting the trademark in court would have started at $2,000, then gone up to five figures easily—much more money than she would ever have made from the book. So she worked on getting the word out. Folks like Cory Doctorow and John Scalzi passed the word along, and the Electronic Frontier Foundation got involved. Subsequently, after reviewing the facts of the matter, Amazon returned the book to sale. (It never stopped being available at Smashwords.)
In a follow-up blog post, Hogarth thanks the EFF for its help, and notes that at this point the fight is over unless GW decides to escalate it to court. She writes:
I continue to be gravely concerned by the lack of due process shown me. There’s a tradition of facing one’s accuser, and one of the worst parts of this ordeal was having no petition, no appeal, no right to defend myself and point out the absurdity of the claim against me. It seems that some may take advantage of this for a cheap legal ride, damaging someone’s income and reputation simply by firing off an email. This is wrong and nothing about Spots’ outcome will prevent it from happening again. I’m not sure how a change in that process might be effected, but until that happens we’ll have to continue to stand together.
The thing that bothers me is, this came about because the rule of trademarks is that you have to protect your trademark or you lose it. If GW really feels that worried about their “space marine” trademark, is it really going to stop with sending Amazon a nasty letter? Might it, after all, decide to take Hogarth to court?
And of course there are plenty of writers, such as John Ringo, who continue to use “space marine” in their work. It’s not exactly an esoteric term. What else are you going to call a marine who operates in space? Though GW hasn’t turned its gimlet eye on any of them, presumably because their publishers have legal departments. Perhaps now that the EFF is involved, Hogarth will join their ranks.
Still, this points out the larger problem inherent in self-publishing in a more general sense. It doesn’t have to be about a trademarked term, such as space marines. It could simply be that you say something someone else doesn’t like, and they come up with some reasonably legal-sounding reason for shutting you down. We have organizations like the EFF and Chilling Effects to help in the long run, but that doesn’t help in the short run when bookstores can take your work down just because some big business complains. Unfortunately, this is a consequence of how our legal system works, and I just don’t see that changing anytime soon.