I was searching the internet for something for Caturday and found this.
I immediately thought, “Well, sure. Every Ozzy Osbourne fan knows that.” That in turn led me down the mental rabbit hole of one of the dumbest consequences of the Satanic Panic. I’ve mentioned the Satanic Panic several times, including a brief post hinting at my experiences with it in the context of gaming. This is a different angle, and one that’s more mainstream.
Ozzy Osbourne wrote a song called Suicide Solution. Here are the opening lyrics.
Wine is fine by whiskey’s quicker. Suicide is slow with liquor. Take a bottle and drown your sorrows. Then it floods away tomorrows
So, what do those lyrics mean to you? What is this song about? If you answered, “Putting a gun to your head and shooting yourself,” then you’re an idiot. I get that not all of you are chemists. I understand that “solution” meaning “a liquid mixture in which the minor component (the solute) is uniformly distributed within the major component (the solvent)” isn’t the first thing you think of when you hear that word, but when analyzing the lyrics to this particular song, it’s clear that’s what Osbourne meant. Moreover, any fan of Osbourne would have known that even if you didn’t.
His parents insisted that young, impressionable adults were particularly susceptible to being influenced by Osbourne’s music . . . .
Yeah, so they understand the meaning of the words, which warned of the effects of alcohol and drug abuse.
To say that this song caused someone to kill themselves not only flies in the face of logic (supported by the fact that this lawsuit was dismissed), but it also diminishes the importance of factors that actually cause suicide. If you can’t identify the cause of a problem, it’s probably going to be difficult to solve it, and yes, sometimes that means admitting that you, the parent, have far more control over your child’s mental health than a public figure and stranger who has deeper pockets.
Censorship is stupid, and this case is yet another piece of evidence as to why that’s so. Not only was it an attempt to run from responsibility by scapegoating Ozzy, but if it had succeeded, it would have silenced a positive message about avoiding alcohol abuse based solely on ignorance and prejudgment. Let’s not relive the past in this regard.
As I’m continuing my data entry of 1e monsters into my database, I relearned a rule I don’t ever recall from my 1e days: Magic resistance isn’t a constant. A monster’s magic resistance is calculated based on an 11th-level caster, adding/subtracting 5% for each caster level below/above 11th. For example, if a monster’s magic resistance is 50%, then a 10th-level caster has only a 45% chance of piercing it, whereas a 12th-level caster has a 55% chance of piercing it. Once again, this sent me down a rabbit hole, though a shallow one.
First, some obvious context. There are a lot of conditions or effects you can place on an enemy creature. These effects become available at various character levels throughout the game, getting progressively more problematic (interesting) as one progresses in level. If you give a low-level character too powerful of an arsenal, it makes the game boring because 1) it’s too easy at lower levels, or 2) if the monsters also get that same arsenal, you run out of effects to earn, and the game becomes the same for far too long during the adventuring life of your characters. Put another way, your 20-level system could have a sweet spot from levels 1-5, with levels 6-20 being identical. I’m sure this is obvious to everyone. Basic stuff.
Here’s where all of this took me. Going beyond 1e, other editions made it a lot easier, for example, to make saves. Save bonuses continued to go up, but certain abilities screwed with that system. For example, in 4e characters might eventually gain the ability to save at the start of their turn rather than the end. One response that undid the value of that ability was that some high-level characters couldn’t be hit by low-level characters no matter the attacker’s to hit modifier, weapon, or d20 roll. That was simply a feature of the NPC.
Magic resistance is a simple, open, uniform, and thus elegant way to implement this. It was a way of resetting the system when characters got to be a certain level. Monster’s still got saves, but a lot of high level spells didn’t grant saves. No worries. The monsters remained a challenge because they didn’t need a save. Magic resistance gave them a secondary sort of save. Another example that wasn’t developed this way, but should have been, was the hellfire created by 3.5e’s Mestopholes. It was fire that penetrated fire resistance, and it was said to worry Asmodeus greatly (see Fiendish Codex II: Tyrants of the Nine Hells). Something like that could have, again, more elegantly been used to reset the bloated system of resistances while still keeping things interesting. Granted, this would require a subtle touch, but 1e magic resistance didn’t piss off the masses, did it? The tiers of 4e (i.e., heroic, paragon, and epic corresponding to 10-level ranges) were perfect for such periodic adjustments. Unfortunately, the desire of game designers to hide their mechanics prevents such elegant mechanics, resulting in unnecessary bloat and math at the table.
Game designers should focus on their characters, campaign settings, and adventures. Mechanics should be streamlined.
That’s a weird title, I know, but it relates to something that’s bugged me about what appears to be a universal approach to game design. It manifests in two general ways.
“Damage Type” Magic Items
What could be cooler than a flaming sword, right? It’s a sword made of metal but is on fire. That’s great. It’s also an appropriate item for a weapon-using character advancing to an appropriate level. Except that it isn’t. It’s actually a curse. If you have a +1 longsword that does 1d8+1 damage, and I have a +1 flaming weapon that does 1d8+1 fire damage, in most cases, we have the same chance of doing the same damage. However, when we face a fire giant, you’re still doing 1d8+1 damage, and I’m doing 0 damage unless I pull out my non-magical dagger. All my fire damage is negated by the fire giant’s resistance. But hey, that’s okay. When we face a frost giant, you’ll still be doing 1d8+1 damage, but I’ll be doing double damage (2d8+2) damage, right? Right? Well, no. Against the frost giant, we’ll both be doing 1d8+1 damage because frost giants inexplicably aren’t vulnerable to fire damage. From a logical perspective (i.e., flavor), it makes sense that they would be, and from a gaming perspective (i.e., having fun), it would be an appropriate trade off considering that fire giants nerf me. However, I rarely see vulnerabilities in monsters when in fact every single resistance a monster has should always be countered by a meaningful vulnerability. That would appeal to both logic (flavor) and game theory (fun).
The pretentious among us (no judgments; that’s me too) may respond that it doesn’t necessarily make you weaker; it just holds you in place. But that’s the same thing for all intents and purposes. In 4e, a +x magic weapon would do an extra xd6 damage, but for a fire weapon, that extra damage would be fire damage. So, the fire weapon wouldn’t make you weaker than you already are, but it would make you weaker than what you should be. At a given level, if you’re expected to have a +2 weapon, then eliminating your extra 2d6 of damage against fire giants is effectively the same thing as weakening you when facing those monsters. You’re weaker than your contemporaries, which means you’re far better off selling the flaming sword than keeping it. In any event, it’s no reward to find one.
I know that curses can be fun, at least for old-school D&D players, but the flaming sword isn’t meant to be a curse, so it shouldn’t be. Yet it is. Consistently. Why? Even in 4e where vulnerabilities were more common than any other game I played, they were still relatively rare, and when they existed, they didn’t balance. That is, a fire giant with resistance to fire of 10 was (of course) vulnerable to cold, but his vulnerability was only 5. Maybe the game was balanced around this discrepancy (not as far as I can tell), but even if so, all this accomplishes is to make the game more frustrating. If you adjust the math so that they could both be 10, people would feel like their found items were actual rewards for a job well done. As I’ve previously discussed, mathematical advantages and disadvantages are illusory. The real money is in doing cool things and telling a good story (the latter not being relevant here). Making yourself useless against fire giants is uncool. Making yourself insignificantly more useful against frost giants is almost as uncool (though it might mathematically come close to balance considering that you can still do a small amount of damage against the fire giant with your non-magical dagger). The boring magic items became better than a lot of the ones that would otherwise be cool.
Why do seemingly all game designers do this? It’s maddening.
The 4th Edition Invoker
Here’s another way this manifests itself, though it’s probably far less common. For those of you that never played 4e, the Invoker was a flavorful class. It was the divine equivalent of the sorcerer (c.f., Divine Soul from 3.5). That is, Invokers channeled divine energy not through research or training but through instinct. As a result, they lacked control over those energies, often resulting in self-harming feedback. This meant that, in addition to damaging the enemy, the Invoker’s attacks (usually) dazed the Invoker. Here’s a hypothetical example that demonstrates the problem. Let’s say the Rogue (a.k.a., Thief) has a 3rd-level power (that’s an “attack” in 4e) that does XdY+Z damage and on a hit immobilizes the opponent. The Invoker would also have a 3rd-level power that does XdY+Z damage and on a hit immobilizes the opponent, but then dazes the Invoker. That makes the 3rd-level Invoker weaker than the Rogue. Not just different (which is cool), but weaker (which is not). The class was always behind the curve, but there’s an easy fix for this. Change the Invoker’s power such that it also dazes the enemy in addition to the immobilization. That’s not a perfect solution – PCs are far more sensitive to conditions than NPCs – but it comes close enough for government work. It makes the flavorful self-harm worth it, and thus the class is viable. My experience is anecdotal, but I knew only one person other than myself that played an Invoker. I wouldn’t be surprised if it were among the least popular classes in 4e, and that’s probably a large part as to why.
EDIT: After discussing this on Facebook with a friend, I want to add that the 5e sorcerer’s Wild Magic in 5e technically has a chance of creating negative feedback, but the chances of that are quite rare, and the bonuses it gives in the vast majority of cases (4d10 lightning damage to up to 3 creatures within 30′!!!) is amazingly beneficial. Clearly, Wild Magic is meant to be a boon, not a bust, and it absolutely is one. No balancing feature is needed, but technically Wild Magic by itself is a balancing act, and it certainly is an exception to the problem I’m addressing. Hence, I’m not surprised that the class remains relatively popular.
I think both of these things come from the same place. Again, I ask, why do game designers seem to take this approach? It seems obvious to me that this is a flaw in game design, but I’ve never seen a game even try to get it right, let alone succeed.
I played 1e Advanced Dungeons & Dragons (“1e“) from 1977 to 1982. I received the “blue box” for Christmas 1977, but by 1982, the Satanic Panic pulled me away. I came back in 2005 (completely missing 2e and 3.0e), but by then I was wrapped up in the current edition, 3.5. Last week (when I wrote this post), the 1e Unearthed Arcana had been generating a lot of chatter over on MeWe, but because it wasn’t published until 1985, I was never aware of its existence until long after I left 1e. With my impending return to 1e, I’m creating a database of all the 1e information I can gather and have just finished the slow process of data entry on 1e Unearthed Arcana spells. Having played the 3rd, 4th, and 5th editions, it’s amazing how much iconic material is in the 1e Unearthed Arcana.
Alarm, Evard’s Black Tentacles, Heroes’ Feast, Melf’s Acid Arrow, Mordenkainen’s Magnificent Mansion, Otiluke’s Resilient Sphere, Stoneskin, and Tasha’s Uncontrollable Hideous Laughter (or their equivalents) are among many spells that are in most (or all) of the first Player’s Handbooks for later editions, but that didn’t enter 1e until Unearthed Arcana. I took those spells for granted as part of the game even though I never used them when I played 1e. So, if for no other reason, there’s no doubt that I’m going to allow Unearthed Arcana in my game.
I’ve said it before, and I’ll say it again: 1e has its problems, but there’s a ton of good in there.
I’m designing a database for 1st Edition Dungeons & Dragons and am close to finishing the data entry on spells. This brought a copyright issue to the forefront. Characters can be copyrighted. This isn’t a controversial position. However, the name of a character is not copyrightable, and unless a name is used as a brand for your line of products, it doesn’t even receive the (much weaker) protection of trademark. So why does everyone remove proper names from spell names when referencing D&D spells?
Copyrighting a Single Word or Short Phrase
While there is no “bright line” rule stating a minimum number of words necessary to secure a copyright, it’s well settled that a short phrase is not copyrightable. Either they lack tiny amount of creativity necessary for copyright (thus likely representing independent creation) or the merger doctrine applies. A simple Google search will uncover a multitude of articles supporting this notion.
Only nothing at all is more minimal than a single word, so there’s no doubt (outside of Poland) that a single word can’t be copyrighted. But even a short phrase, such as the name of a spell, can’t be copyrighted, especially where it’s descriptive of the mechanics of the spell (mostly the case).
If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play. . . . It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.
45 F.2d 119, 121 (2d Cir. 1930). This has since become known as the “well delineated character” test.
Can a spy be protected? Of course not. What if that spy uses sex as a tool of the trade? Don’t all spies (at least in fiction) do that? How about if he’s a martini drinker? Hmm, that sounds familiar. “Shaken not stirred”? Well. . . . Eventually, we get to the specific character of James Bond, and he’s certainly a copyrighted character, but it took a bit of detail beyond his name to get there. If I created a fictional character of James Bond who was an accountant, I’d be just fine. In fact, I could even have him joke, “I’m not that James Bond.” I’m not using Ian Fleming’s James Bond, just referencing him, and to the extent James Bond is trademarked, readers will understand from context that I don’t have the endorsement of whoever currently owns the character.
The less common, “story being told” test isn’t relevant here, but in case you’re interested, see Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955) (“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”).
Elsewhere when discussing the precise boundaries of copyright as it related to plays, the Nichols Court went on to add that, “[n]obody has ever been able to fix that boundary, and nobody ever can.” Nichols at 121. That makes copyright hard, but it’s not impossible, and sometimes it’s even easy. A name cannot be protected by copyright, even within the context of a spell name of a few words.
Tenser’s Floating Disc
So why do so many of you seem to think that you’re avoiding copyright infringement by avoiding writing, “Tenser’s Floating Disc,” “Mordenkainen’s Magnificent Mansion,” and “Tasha’s Hideous Laughter”? Based solely on the text of the spell as written, can you tell who Mordenkainen is? Is Mordenkainen the wizard that wrote the spell? The wizard’s significant other, child, or pet? The name of the Wizard’s favorite watering hole anthropomorphized into the owner of a mansion? Even if the original spell as written by TSR contained the answers to such questions in sufficient detail to flesh out the character (it didn’t even try), a reproduction of the spell not including such information, but rather limited to the spell’s mechanical effects, wouldn’t infringe on the character of Mordenkainen just by using the name. The name isn’t what’s copyrighted; the combination of several traits defining the character are, but they’ve been left out.
Seriously? You think WotC can restrict use of the name, Tasha?
This is as ridiculous as, for example, using the word “Forgeborn” for “Warforged” as if WotC owns the word, “Warforged,” and that use of “Forgeborn” relieves the writer of any infringement of WotC’s text describing the species. Such a writer is focusing on the wrong thing. Think of it this way: If you think that dropping the name off of the spell cures your text of copyright infringement, then you concede my point that spell text describing the mechanical effect of a spell within the context of an RPG isn’t usually copyrightable. Great! However, you then must be thinking** that the name itself is where the copyright lies. That can’t possibly be true. It flies in the face of every knowledgeable commentator (again, outside of Poland) that’s ever addressed the issue.
** Unless, of course, you’re still under the mistaken impression that the OGL is somehow a valid contract, and that its terms, if taken seriously, wouldn’t constitute copyright misuse. But if you really want to know why that’s silly, you’ll have to read that long post.
There’s absolutely no legal reason not to use those names in spells, and it doesn’t hurt WotC at all to use them (other than perhaps robbing their arrogant legal department of their hubris). Why is this important? Because there are too many misconceptions about copyright law that have had far reaching consequences to the gaming industry and the gaming community in general. The text of the Open Gaming License and System Reference Documentcollectively foster this misinterpretation, and I suspect (can’t prove) that’s an intentional scam. If WotC legal gets you to focus on the word, “Tasha,” but does nothing to stop you from copying the text of the spell, then you still may be infringing whatever copyright they arguably have. If you do something that’s 100% legal later down the road, but it’s something they don’t like, they can go after you for that infringement. As I’ve discussedelsewhere, this can often lead to copyright misuse, but most gamers aren’t sophisticated or wealthy enough to hit back on those grounds. More importantly to the community as a whole, while using these names in spells is not creative on your part, your misconceptions eventually lead down the road of stifling your own creativity. The purpose of copyright is to promote creativity. When copyright law stifles creativity, its entire purpose vanishes, in which case we may as well not even have copyright.
You can’t know what you can’t do unless you also know what you can do.
Sorry, but it’s time for another serious and long post.
I came across an article from the Stanford Graduate School of Business last week. It cites a study that demonstrates the importance of humor to the human psyche, which in turn correlates (and presumably is the cause of) health benefits. This doesn’t surprise me at all. The subject of this post is something that wasn’t the immediate concern of the author but is quite important and was lurking in his own text.
Scrolling down a bit, you’ll find a graphic containing four quadrants. I’ve recreated the graphic here using the advanced graphic techniques of MS Word.
This chart sums up the arguments of the author. It says a few things that are relevant. First, it claims that making jokes is a good thing even if you bomb. Everyone bombs, but people respect the effort. As I’ve stated before, I have no disagreement with this. You can and should bomb as long as you learn from the mistake. Second, it states that the degree to which you generate laughter is irrelevant if the joke itself is inappropriate. In theory, I agree with this, but I have a real problem with the direction Americans are going in labeling everything as offensive. Case and point:
Clearly, if your audience is a room full of Klansmen, then you can bring down the house and still be a villain as the chart states. However, most audiences aren’t 90% or better Klansmen, yet there’s a horrible trend towards labeling everything as offensive. To justify the position, the habitually-offended simply label anyone that laughs at anything they don’t like as a Klansman, Nazi, or anything else that allows them to mask their unreasonable offense as reasonable. This, of course, leads to real harm to people’s lives, but I’m not going to dive into that. I’m instead going to point out two other consequences that concern me: Killing comedy by limiting its subject matter, and a more general problem (beyond comedy) of reasonableness transforming from a community standard to an individual standard. As to the first issue, no where was this more apparent than the show, Brooklyn 99.
Limiting Subject Matter
After seeing tons of YouTube videos containing various characters’ best moments, I decided Brooklyn 99 was probably my kind of show, so it became the latest binge watch for me. It’s clear that the writers were very talented. There were funny jokes, many characters were endearing, and there were some recurring themes (e.g., the Halloween heists) and wonderful catchphrases that these writers wisely knew not to overdo (a common error among their colleagues).
That’s great, but after five seasons, Fox cancelled it. Many were incensed, but it was cancelled because the ratings were poor. After a Star Trek-esque fan campaign, it was then picked up by NBC, but the coming 8th season will be its last. This despite the network change inevitably drawing in at least some viewers that had never seen it when it was on Fox. Despite the vocal minority of diehard fans, the show clearly couldn’t keep anyone’s attention for long. Why not? Because, contrary to the assertion of the linked article (citing writer Michael Lewis), writing jokes today absolutely carries a risk, and the writers didn’t want to bear that risk. It was clear that they were going out of their way to walk the tightrope of avoiding outrage at the hands of this vocal, minority (some of whom wouldn’t necessarily be fans of the show), but ultimately that small audience can’t support the show. When the habitually-outraged tie the hands of comedy writers, we get a modified chart.
Very little is considered appropriate by the habitually-outraged, and that small sliver of acceptable comedy that’s left can’t maintain anyone’s interest for very long. I finished it only because I can’t help myself. Once I start a task, whether business or personal, I have to complete it, which is why I generally don’t binge-watch TV shows if I see they have that many seasons. I took a chance on this one and was ultimately disappointed in the last few seasons. Despite its several strengths, it became a chore to finish it, and not because it jumped the shark. It never reached such a height. Rather, it simply grew into a tedious retread of boring, unchallenging stories because the jokes had almost no chance of offending anyone. Even where it comes to non-comedic material, it was predictable. If you didn’t know “whodunnit?” as soon as the bad guy first hit the screen, you’re an idiot. The villains were all telegraphed because the formula was always the same. Moreover, I wanted to throw Charles, Hitchcock, and Scully out a window 30 stories up, though that started within a couple of seasons. They were frustrating characters.
But killing comedy is merely a symptom of an insidious disease.
The Standard of Reasonableness
Everyone is offended by something, and that’s fine, but too often I hear the line, “You have no right to tell me whether I’m offended.” The fact that people say that means they’re missing the point. Absolutely no one is doubting you taking offense. What we’re saying is that you’re being ridiculous for doing so. But even that isn’t the problem. It would be utterly ridiculous for you to be offended by me wearing a blue shirt simply because your dad died while wearing an orange shirt (the other end of the color wheel), but it’s okay if you are. You can’t help that. Humans are emotional creatures, and certain associations will always result in illogical reactions. However, you shouldn’t impose that offense on me by demanding I always wear an orange shirt for the rest of my life.
And that’s the crux of problem. Any one element that’s deemed offensive by the online mob is composed of a miniscule percentage of people (some of whom aren’t tied to the subject matter at hand), but everyone is afraid to incur the wrath of that mob. Moreover, because these internet tough guys aren’t content with just changing the channel, but rather insist everyone get in line with their sensibilities, far too much content is labeled taboo for everyone, and we’re left with the modified chart similar to the one above for all areas of life, not just comedy. If you disobey, you’re given a horrible label that, without being questions, can cause you to lose your job, friends, and even family. This isn’t imposing accountability; it’s imposing the insecurity-driven whims of the individual on all of us. Throughout history, vigilante mobs have always swept up more innocents than the guilty because there are no protections from false accusations.
This is a troubling trend that those currently on that side are blind to. Rather than “reasonableness” being defined by the community, it’s being defined by each person on an individual basis. Going back to my crass example, if Mary’s dad died wearing a blue shirt, and Mary gets to define for me what’s reasonable, then I always have to wear an orange shirt. However, Joe’s dad died while wearing an orange shirt, so Joe demands I always wear a blue shirt. Then there’s Sally, who’s dad died while trying to break the Guinness Book of World Records record for wearing the most shirts at once (it’s 260, and as far as I know, Ted is fine), and she demands I wear no shirt at all. Finally, there’s Aloysius, and he demands I always wear a shirt with both blue and orange in it because of some other insanity I’m too lazy to invent. So, no matter what choice I make, I’m always going to offend three (a majority) of these four people, even though the majority (three) of all five of us aren’t offended by whatever choice I make. This places me in an impossible position, even though I’m not addressing the demands of 7.5 billion humans, 325 million Americans, 8.5 million Virginians, 1.1 million . . . Fairfax Countyans(?), or even 47,000 McLeananites (copyright 2021, me [not really]). Use any of those numbers, and seemingly ordinary actions or words will result in the same sort of no-win scenario. This is precisely why reasonableness must remain a community standard. We, not a few habitually-outraged, internet tough guys, should set that standard.
As bad as tyranny by the majority is, tyranny by the minority is much, much worse. We strike that balance legally by having a Constitutional democracy where a supermajority (still democratic!) creates fundamental rights that supersede the passing whims of the cops or even the legislature, protecting the individual, but still ultimately subjecting us all to the broader strokes of the majority. Your right to impose your insecurities upon the rest of us by suppressing speech is not the sort of fundamental right that’s necessary to preserve your individual dignity. Or at least it shouldn’t be, because it in fact suppresses an actual fundamental right in the internet age, where Town Square is now in the hands of the private sector. But if we can’t enjoy even jokes, there’s no hope for finding compromise on more difficult issues.
If you were looking for a miracle cure for what ails us, you’ve come to the wrong blog, but apparently our lives depend on it.
Having worked in intellectual property law, I like to give proper credit where it’s due. I found this meme and was looking for an excuse to use it.
As I was doing my research as to who produced this, I ran into an issue. I saw this shared on Facebook by a connection (I don’t remember whom), but they shared it from another source, so that person shouldn’t get credit. It looks like they got it from thekratorianchronicles via Instagram, but based on a signature of sorts within the image, thekratorianchronicles doesn’t seem to have created it, so they also shouldn’t get credit.
So, credit belongs to “HORRORFLIX,” but who are they? Searches via Instagram, Twitter, and Facebook yielded far too many entities for me to figure out who owned it. With no logo, Twitter handle, URL, or other unambiguous identifier as part of the signature, I can’t give proper credit despite how important I think that is.
By now, most of you nerds must be aware of the newest incarnation of TSR (“newer TSR”). They exist despite the fact that the new TSR (ummmm, “new TSR”) hasn’t died yet. Among other well-known gaming people, Ernie Gygax serves as Executive Vice President. The idea behind the newer TSR is to recapture the magic (get it?!) of the old days of the original TSR and Advanced Dungeons & Dragons. Unfortunately, Ernie casted Dispel Magic in an interview that ruffled a lot of feathers. I’m not commenting on that. As I’ve said, this is a not a blog for political issues, matters of human rights, or nuclear war. That’s way too heavy for this blog. Besides, do you really need yet another voice in this massive choir of commenters? No, so instead I’m going to discuss an aspect of IP law that’s probably relevant to the case and many of you may not know.
Okay, you knew this was coming, but it’s especially important here. This is not legal advice. All I’m doing is stating the law in the abstract. If someone, including either or the two TSRs, thinks it applies to their facts, then they can hire an attorney to get legal advice. But isn’t stating the law legal advice? No, it’s not. Anyone can state what the law is (e.g., “The speed limit is 55 mph.”). Only attorneys can apply that law to another person’s fact pattern (e.g., “The speed limit is 55 mph, you’re driving 65 mph, and therefore you’re violating the law.”). No district attorney is going to prosecute you for telling someone they’re speeding, but this is an easily digestible example to define “practice of law.” This is key here because I strongly suspect that I have only a fraction of the facts surrounding this case, so it would be impossible for me to practice law here. So I ain’t. Got it?
I’m My Own Inspiration, aka, The Tweet Heard ’round the World
This blog post was ultimately inspired by, well, me. That is, it was inspired by my response to Luke Gygax’s tweets with which many of you are familiar. Of course I was deflecting from the actual topic to the law. It’s what I do.
Trademarks and the Constitution
Oh, you thought you were going to get through this without any heavy-handed legal philosophy, didn’t you? Here’s some constitutional law, suckers.
The US Constitution defines a government of limited powers. That is, unlike the states, the federal government lacks power unless 1) the US Constitution expressly says it has that power; or 2) the federal government absolutely must have that power in order to use a power that the US Constitution expressly says it has. As for number two, nowhere does the US Constitution say that the feds have the power to enter into employment contracts, yet they must have that power in order to, for example, create the IRS and hire accountants, admin assistants, janitors, etc., because otherwise the power to collect taxes would be rendered useless.
This is not a controversial statement among lawyers, though lawyers are (believe it or not) human, so many of them sometimes ignore this principle as well because . . . okay, no pontificating. The notion that the feds lack the power to act by default seems to be lost on many people, but there it is. Accept it or deny it, but it’s 100% true.
Okay, back on point, the Arts & Sciences Clause grants the federal government the power to grant patents and copyrights, but it doesn’t mention trademarks. That’s left largely to the states. (Weird, huh? When have you ever heard of state trademarks?) However, there’s a back door that gets the feds into that game. The Commerce Clause allows the feds to regulate “interstate commerce” (i.e., business transactions that cross state lines). If a vendor in Arizona sells something to a consumer in Utah, then that sale could open the door to federal regulation even if the feds don’t otherwise have the power to stick their noses into it. So, the Lanham Act provides for federal registration of trademarks with the US Patent and Trademark Office only if the owner is using their trademark in multiple jurisdictions. If you’re using the trademark in only one state, you don’t qualify for a federal trademark. However, if you do qualify for a federal trademark, it applies across the entire United States. (Well, almost, which will be my ultimate point.)
There’s a limited exception for those with an “intent to use,” but I’ve given you enough to digest.
So what happens if you don’t register your trademark federally? As long as you’re using the trademark in commerce, you develop “common law trademark rights,” but unlike the federal trademark rights, those rights apply only in the jurisdiction or region where you’ve been using the trademark.
If you’re doing business in a large state, common law trademark rights may arise only in your local region. In that case, registering your trademark with that Secretary of State for that state would grant you trademark rights across the entire state.
Seniority of Trademarks
Okay, I’m finally approaching my point. Imagine a situation where I’m using a trademark, Bodine’s Bovines, on my cow farm in Virginia. Therefore, I have trademark rights only in Virginia. Only I can use that trademark in Virginia.
Next, Fred Bodine (no relation) opens a couple of cow farms, one in Utah and one in Nevada, both using the same Bodine’s Bovines trademark. He registers the trademark federally based on his use across state lines, so now he has a trademark that applies across the entire United States. Finally, I decide to open a second farm in North Carolina. I try to register my trademark federally, but Fred beat me to it, so my application is denied. Also, Fred sends me a cease-and-desist letter preventing me from using Bodine’s Bovines at all. Does he have a right to do that? In North Carolina, yes, but in Virginia, no. I opened my Virginia farm first, and even though I never registered the trademark with either the feds or even the Commonwealth of Virginia, my use in Virginia was “senior” to Fred’s use (i.e., because I used it in Virginia first). However, Fred can block me from using it outside Virginia because he registered the trademark federally before I opened the North Carolina farm.
What if instead I had a federal trademark based on prior use both in Virginia and North Carolina, let it lapse, and then Fred came along and grabbed it based on his use in Utah and Nevada? I’d still have senior rights in both Virginia and North Carolina.
So, you can think of a federal registration as having the same effect of using the trademark in every state starting at the time you registered it. Where you got there first, you get to use it, but you’re blocked where you didn’t get there first. In a more complex case, you could imagine a patchwork of multiple, identical trademarks being used by several different companies in several jurisdictions, with one of those companies having a federal trademark covering the unclaimed jurisdictions. So, the company with the federal trademark could nevertheless be blocked from using that trademark in jurisdictions with senior users. This isn’t a far-fetched scenario, but if its mere possibility surprises you, then . . . surprise!
So, what happens next? Well, when the two parties each have something the other wants, they could strike a deal. For example, each could license the other the right to use their trademark in jurisdictions in which they’d otherwise be prevented from marketing. If both parties are on relatively equal footing, the license fee may be, I don’t know, as small as $10 per year. However, if one party doesn’t realize how much of an advantage they have or lack the funds to enforce their advantage, they may make the same deal.
Sound familiar? No? Well, too bad. I’m not getting into specific cases. 🙂
After completing this post, I found a relevant Twitter thread.
There’s a lot of overlap, but Orcish Law makes a few other relevant legal points and peppers in a lot more gifs. I left much of that out because I have a tendency to ramble, so I try to keep my posts as short as possible. We both included disclaimers though. It’s what we do.
If the trademark is valuable, and you can afford a lawyer, get one. Otherwise, you’ll have to either cut a bad deal or find a new trademark.
Well, it’s Tuesday, so my second Facebook suspension is winding down. During this “one-day became three-day became four-day” suspension, I was unable to manage my charitable fundraiser for the Juvenile Diabetes Foundation, all because Facebook is afraid of people having opinions (though my expressed opinion was clearly a joke).
I see no reason to delete my Facebook account, because I’m still able to communicate with people via Messenger. After all, the whole point of social media isn’t to solve the world’s sociopolitical problems, but rather to connect. And share cat memes. However, I’m quickly shifting my focus to MeWe. My profile can be found here: https://mewe.com/i/robertbodine1. The problem with MeWe is that it’s not very good for building networks, which, again, is the point of its existence. The only way to find people is to know they’re there. So please, if you’re considering an alternative to Facebook, give MeWe a try, and invite as many people as you can to do the same. I suspect it’s only a matter of time before Facebook runs afoul of antitrust law. You may find yourself making a change eventually.
Facebook should be ashamed of itself, but it isn’t.
Less than an hour ago, I deleted a post from this Twitter account. It’s my daily, automated paper, and because this account is meant to be fun and/or silly, I use every filter at my disposal to make sure nothing too serious appears in that paper. Unfortunately, that doesn’t always work, and today’s paper included articles I simply didn’t want appearing on this stream. That said . . . .
I have to share this bullshit. I just got this message from Facebook.
This is clearly a joke, I can’t imagine why they would even hide the post, let alone give me a 24-hour ban (UPDATE: 3 days now, including my birthday). Ironically, I received this ban on the day I received my first vaccine shot.
Let me remind you of the problem with Facebook, et al. In the old days, the ordinary citizen’s standard means of political discourse was to stand in the middle of town square, get on a soap box, and bitch. Such acts would result in counterarguments from the crowd, but even more importantly the bystanders got to listen and form opinions somewhere in the middle of the lunatics. Because town square is public property, the Free Speech clause protected such discourse. Now the ordinary citizen’s standard is to use social media, and it’s what everyone relies upon for such discourse. The problem is that social media platforms are private property, and even clear jokes can be censored legally. Speech is going to be chilled at a time when we need reasonable discussion — and a sense of humor — the most. Our only recourse will be antitrust law, and Twitter has certainly flirted with that in the Parler case (see the section entitled This Isn’t the End of the World, but It’s No Small Matter), but it’s going to be a long time before that dust settles and the common person’s everyday speech will once again be free.
UPDATE!!!! Facebook has decided to extend my suspension to three days, which means I won’t be able to thank anyone for all the birthday wishes I’m sure to receive on Monday. If you’re reading this, thanks in advance. Also, my MeWe profile is at https://mewe.com/i/robertbodine1. Just sayin’. No reason.
Side note: I tried to use the back door that used to work but apparently no longer does. I posted to Instagram, which shares to Facebook automatically. Unfortunately, my post violated community standards over there. I’m going to try again but with a picture of a kitten. We’ll see what happens.
Facebook should be ashamed of itself, but it isn’t.