Space Marines and the IP Struggle

Games Workshop caused a minor stir this week when it became clear that they were aggressively patent-trolling ebooks to enforce their general trademark of the term space marine. GW is well known the games industry for aggressively defending its trademark territory with a small army of lawyers than only the most successful of authors would be able to afford to defend themselves against. Now that they are interested in getting in on the ebook action, they have moved in pretty forcefully.

The post that started the tale, for me at least, is this tale from MCA Hogarth about how GW  had her book, Spots the Space Marine, taken down (on Amazon) for infringing on their trademark. It is worth reading it through.

I am familiar with Science Fiction, especially military sci-fi, and I was already certain that Space Marine is a term that has been around much longer than GW has had the trademark. Heinlein’s Starship Troopers leapt to mind. I was a little peeved at GW for attacking a small author with a questionable trademark infringement so I posted the link to my author page. A friend responded with a link to wikipedia that details the history of the term in games and fiction, dating back even further.

I was pleased to read later on that I was one of merely one many. MCA Hogarth’s update on the story is very interesting, noting that it drove a staggering amount of traffic to her website and has encouraged her to keep fighting. More influential sites, like the Mary Sue, took up the call. While it is nice to see this kind of response, but I’m not sure if it can influence an entrenched IP-Driven entity like GW. Still, their interpretation of the trademark applying to ebooks is potentially vulnerable, especially since judges are getting serious about patent-troll behaviour.

Pulling back, I have to say I really love the Warhammer 40k setting the home of GW’s Space Marines. There’s something about the ultra-macho, grimdark heroism, and big guns with power armour that appeals to my inner fifteen year old. I also really liked the recent Iron Man movies. Robert Downie Junior really brought the classic marvel power-armoured hero to life in a fashion that made him interesting and appealing. These two IPs are very different and yet they could both be shut down or diminished by an aggressive trademark/patent on power-armour, a concept that has been in the sci-fi vernacular for ages.

Imagine if the Tolkien estate held the rights to Elves and Dwarves as well as Hobbits. Imagine D&D enforcing an IP on Dark Elves or fireballs. Fantasy could lose some of its most basic ideas.

Marvel and DC jointly own a trademark on the term Super Hero. Good luck trying to use the force or lightsabers.

Patent and trademark extensions are all the rage now, so these IP laws could have very long-term ramifications.

It all adds up to a chilling effect on creative fiction in gaming, writing, comics and other forms of geek culture. The previous fifty years of IP creators have been increasingly zealous about patenting and trademarking everything they can, while aware that most of them would not even exist if the generation previous to them had sought the same level of IP control. I despair that new creators will no longer be able to draw upon the rich depths of their chosen genres the way that previous generations of creators did. We may be increasingly stuck with endless relaunches of the same old IPs, over and over, with minor tweaks for new audiences. I’m not against recycling old IPs, I’d just like to avoid a market-place where new content is forced to scramble for an ever-increasingly small share of the idea space while the IP giants get fatter and fatter.

The idea of popular fantasy tropes getting trademarked is kind of frightening. Genre fiction is heavily reliant on sets of common concepts. The idea of a spell is common to fantasy fiction, but can be opaque to first-time readers, especially if they also lack knowledge of mythology or fairy tales . Once they know what a spell is, that keyword opens up a whole section of the genre to them. Common concepts mean authors don’t have to keep inventing words for the same thing. I would argue that a Space Marine is one of these. GW also had trademarks on Ork (not orc), Inquisitor, Marauder, and Warhammer among other things.  I doubt that some of these would hold up in court, but MCA Hogarth’s case didn’t make it to court before her book was pulled by the publisher (Amazon, not wanting to get sued, I guess). Also, legal expenses of this kind are daunting to most authors, even if they are in the right.

I am over-reacting, no doubt. But I haven’t seen a great new sci-fi series in a while. I often wonder if IP law is partly to blame for this. It is very hard for new creators to manoeuvre in the same arena as well-loved IPs like Star Wars and Star Trek (and 40k), especially with an army of lawyers waiting to pounce if they infringe on the broad swath of idea space that they control.


3 comments on “Space Marines and the IP Struggle

  1. M T McGuire says:

    I may be wrong but, as I understand it, in UK law, this kind of thing is unenforceable. If it can be proved that the term ‘space marine’ has appeared elsewhere, before GW thought it up, then they haven’t a legal leg to stand on. The only reason Amazon would possibly take it down is because they’re American and perhaps American law is different.

    To be honest, what it looks like to me is Games World trying to drum up some news for themselves, but it may be that they’ve trademarked the phrase for a group of products which includes games and also includes books. It may have changed but the way it was explained to me, when trademarking something, myself, was that you can’t trademark generic phrases like space marine, hence their spelling of Orc… that sort of thing is probably the origin of linguistic horrors such as ‘drive thru’.



    • grimkrieg says:

      You are not wrong at all — Most legal experts feel is unenforceable on a number of levels as a book Trademark. However their are two outlying problems.

      1) Legal Costs: The cost of defending against this suit is intimidating to most authors, even if they are fairly certain of victory and recompense after the suit.

      2) Business to Business interactions: GW is a fairly large brand (300+ million/year at its height). If they hold that as leverage over Amazon, I could easily see Amazon making a business decision to help GW enforce the trademarks. This is a much larger concern IMO.

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