Flat Stanley Learns How Ownership Of Infinite Goods Hurts Everyone
from the sounds-like-a-good-children's-book dept
Reader John Lownie writes in with yet another example of legal battles gone mad over trademark and copyright, involving a teacher doing some creative things with a character in a book and the estate of an author fighting over who owns the "rights" to a fictional character named Flat Stanley. The details here are a bit nuanced, and while my initial reaction was to favor the teacher over the author's estate (which the article's author clearly does as well), there's one little tidbit that's totally glossed over in the article that suggests this is mostly the teacher's fault.Here are the details:
- Jeff Brown, an author, wrote a series of childrens' books about a character named Stanley Lambchop in the 1960s.
- In 1964, one of the books in the series, called Flat Stanley involves Stanley being "flattened," and living the life of someone as flat as a sheet of paper.
- In 1995, Dale Hubert, a 3rd grade teacher, found a copy of the book Flat Stanley which was "obscure and nearly out of print."
- Inspired by a single page in the book where Stanley mails himself to a friend's place in California, Hubert begins having his students create and decorate their own Flat Stanley cutouts, and send them to friends or relatives who live far away, asking the recipients to take photos with the cutout, and "send him back with a letter describing Stanley's adventures."
- Hubert sets up a website tracking the results, which starts to bring in tons of attention (along with Stanley showing up with famous people and in famous places).
- Brown, the author, is thrilled about this, and visits with Hubert and his family.
- In 2002, Brown writes another book: Stanley Flat Again
- In 2003, Brown dies.
- Somewhere around 2006 Brown's estate sells the rights to Flat Stanley to a group that makes a musical around the now popular character. The estate also sells the rights to Universal to make a Flat Stanley movie.
- In 2006 Hubert -- the teacher, not the author -- (on the advice of his lawyer) files for a trademark on Flat Stanley
- Which brings us to today, where Brown's estate is protesting the trademark application and wants to take control of the FlatStanley.com website to sell merchandise associated with the musical/movie (though they have no problem with Hubert continuing the project using the FlatStanleyProject.com domain name)
Because of this false belief in "ownership" a problem is created where there was none before. Hubert and Brown had no problems when both were merely using the character. In fact, it helped both of them greatly. But as soon as Hubert exerted ownership rights, then Brown's estate had every right to call foul. Of course, Brown's family is also guilty of exerting ownership rights, when much of the value of that ownership was created by Hubert. So the problem here isn't Brown's estate being a big bad bully -- but that both sides have bought into the ridiculous idea that one can "own" a character like this. Everything was working just fine, and everyone was benefiting when there was no ownership issue.
That's what's nice about an infinite good -- everyone can use it, and there's no loss to anyone. Once you exert ownership rights, you add in artificial scarcity, and suddenly suddenly one person's gain is another's loss. And, as a result, we're all worse off.
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Filed Under: copyright, dale hubert, flat stanley, jeff brown, trademark
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Sold the rights ?
Forgive me if I am wrong, but did they not "license" the rights as opposed to "selling" the rights. I would think selling the rights would mean that they transferred ownership of the rights. What they did sell was a license to the work. Did I miss something ? Ughh, this trying to keep intellect and property straight is making me cross eyed.
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BTW
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Re: BTW
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Re: Re: BTW
Perhaps you don't get to this site much to see the extent of what is in fact patented. You may think there is nothing there to patent. The very article states the site is a "teaching device" I'd say you bundle in the code, the instructions for execution, and the functions of the site and you have a very patentable invention. Did MS not just try to patent holding a click to bring up a menu ?
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Re: Re: Re: BTW
One problem: this "teaching device" was already made public. Hubert would be barred by 102(b).
Did MS not just try to patent holding a click to bring up a menu ?
Did MS get said patent?
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Re: Re: Re: Re: BTW
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Re: Re: Re: Re: BTW
Patent # 6,727,830
"An alternative function of the application is launched if the button is pressed for a long, (e.g., at least one second), period of time. Still another function can be launched if the application button is pressed multiple times within a short period of time, e.g., double click."
http://www.earthv.com/articles.asp?ArticleID=2260
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Re:
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I live near DC and have seen Stanley getting his picture taken at Mount Vernon and all over the National Mall by various doting relatives.
This is a great learning project. Perhaps if the website ownership was to split the rights for the proverbial dollar with the estate and then jointly find a good cause for the profits to benefit. Oh wait that is too reasonable where lawyers are involved.
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Re:
Or perhaps it was suggested and later rejected by the parties.
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Re: Re:
FWIW this appears to be another case of a corporation rejecting free advertising. Harper should give the teacher a book contract to collect Flat Stanley stories and pictures from all over the world.
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The extent of absurd.
The site tells them what to do with the character, so I mail someone my specific iteration of a Flat Stanley. Complete with my coloring, and artistic expression of his clothing, face and perhaps a drawn shape or image of something on his clothing. Could I not then sue those who include my drawn character (think Mickey Mouse now) in those photographs of it?
hmmmmmmmmm
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Flat Stanley Project
I'm very impressed with the level of discussion on this topic and I find it insightful. There's a portion that may not be known, or at least hasn't been included here. The Flat Stanley Project not only requires huge amounts of my time, (I'm a full-time teacher but still do all of the webwork on the site, telephone every homeschooler in North America who applies to make sure they're legitimate, reply to e-mail, etc.) but paying for hosting of a very large site is costly. For a number of years an organization called the Education Network of Ontario sponsored the site by providing hosting, tech support, creating automated forms for me, that sort of thing. A couple of years ago the Educational Network of Ontario lost its funding and folded, and I lost the sole means of support for my FS Project. So, rather than let the whole thing end, I had to find a way to fund it and this is where the lawyers got involved. I created a not-for-profit charitable organization called The Literacy Community, the main task of which is to find sponsors. Now, when I say sponsors, I'm not looking for Pepsico to feature advertisements on the site and come up with stupid jingles (It's the soft drink that won't go flat.) A benefactor or a behind-the-scenes source of support is needed, but it would have to be consistent with what I feel have been the high standards of the site thus far. However, before a sponsor is going to put any money toward a charity, the sponsor has to know exactly what is owned by whom and that's where things got tricky and resulted in the current mess on the Flatlands.
Not only is that sort of clarity required for sponsors, but opportunities for me to expand the Flat Stanley Project have been missed. The NHL and the Olympics come to mind. It's ironic that the Flat Stanley Project has been used to increase understanding and tolerance among different cultures around the world yet thus far has been unable to bridge the differences in this intellectual property dispute. For hundreds of thousands of children the Flatlands have been a place of imagination, creativity and inspiration and I'm still hopeful a mutually beneficial outcome can be achieved.
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Re: Flat Stanley Project
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flat stanley trademark
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Re: flat stanley trademark
You can take that any way you want, but it seems a clear trademark which signifies the creator of the goods.
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lost to history
It's nice that a teacher did a cool, fun project using someone else's copyrighted material, but surely you don't think he should be able to register the copyrighted material as part of his trademark.
If anything, this demonstrates that pre-emptive registration of marks that haven't actually been used as identifiers in trade is a pretty silly time-wasting business. That's another issue, however. The biggest issue I see here is similar to the issue I have with your seeming advocacy of alternative copyrights that force the author to renew and renew and renew or risk losing his property: you want creators to do all kinds of paperwork to protect work that should be automatically protected in the first place.
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Re: lost to history
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Re: Re: lost to history
Also google "orphan works act" in regards to a bill now in Congress that would, in effect, put the responsibility for tracking copyright ownership in the hands of private companies, and limit damages owed to copyright holders not so registered.
It's a potential bureaucratic nightmare that will hurt creative people the most.
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Intellectual property
n my opinion, we need to revamp some IP laws, yes. But I think the teacher was technically wrong here. He should just be happy with the rewards he reaped while the author was alive.
The lesson we can all learn is that we should think about how we conduct our business. Using long run thinking for what we expect to get out of a relationship of any kind.
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Trademark the words
Hello, Tomi Ungerer, where are you?
http://www.exopuce.fr/tomi/
Centre Tomi Ungerer
4 rue de la Haute-Montée, 67000
Strasbourg
Tél. et Fax 03 88 32 31 54
I suppose if Tomi allowed it to go into the public domain, then NOBODY owns it, and all can use it to their own satisfaction, and your The Literacy Community can rest knowing their investment is sacrosanct and indemnified against suit. However, exclusive use as a source identifier of a public domain image? I dunno?!?
And yes, Trademark is a source identifier for a product or service. The following is for the WORDS only, NOT the drawing:
FLAT STANLEY
http://tess2.uspto.gov/bin/showfield?f=doc&state=pge8hk.2.1
Word Mark FLAT STANLEY
Goods and Services IC 025. US 022 039. G & S: (Based on Intent to Use) Articles of clothing, namely, T-shirts, polo shirts, trousers, pullovers, jackets, waistcoats, raincoats, coats, hats, gloves, scarves, shoes and boots
IC 035. US 100 101 102. G & S: (Based on Use in Commerce) association services, namely, promoting reading and literacy. FIRST USE: 19950000. FIRST USE IN COMMERCE: 19950000
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 77052642
Filing Date November 29, 2006
Current Filing Basis 1A;1B
Original Filing Basis 1A;1B
Published for Opposition January 15, 2008
Owner (APPLICANT) Hubert, Dale INDIVIDUAL CANADA 64 Forward Avenue London CANADA N6H1B7
Attorney of Record Peter Macrae Dillon
Type of Mark TRADEMARK. SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
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Re: Trademark the words
However, when the makers of the Musical were advertising their product, they referred to Flat Stanley as "the ultimate penpal" even though he was never a penpal in the book, but is in my FS Project. Then, the folks from the Musical took images from my site without permission or credit and used them to advertise the Musical on their site, without even mentioning my Flat Stanley Project. That was the sort of thing that encouraged me to seek a lawyer's input.
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Re: Re: Trademark the words
Why?
What harm did that do to you?
Just as your project did no harm to Mr. Brown's book (in fact, it helped it), the fact that the musical was using the success of your site did no harm to you, but, in fact, helped you.
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Re: Re: Re: Trademark the words
When you say, "the fact that the musical was using the success of your site did no harm to you, but, in fact, helped you," you are correct if by "helped" you mean it may have drawn more visitors to my site. The help I'd given them resulted in the rejuvenation of the brand and that translated into increased revenues for them. "The ultimate penpal" seemed a bit much to me.
As a Grade 3 teacher, this is not something with which I'd had previous experience. Sometimes even hindsight isn't 20/20. If you were my adviser, and we had this all to do over again, what would your advice be?
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Re: Re: Re: Re: Trademark the words
Yes, and in the same way, you then applying for a trademark on something they created seemed "a bit much" to them. Hence the problem of trying to own a "concept" that is so easily shared.
As a Grade 3 teacher, this is not something with which I'd had previous experience. Sometimes even hindsight isn't 20/20. If you were my adviser, and we had this all to do over again, what would your advice be?
Well, first, I would suggest not filing for the trademark, as that was bound to set off a disagreement around "ownership" of a concept that had been well shared up until then.
Second, I would have approached HarperCollins, explaining the situation in a friendly manner to see if they were interested in a mutually beneficial relationship, where they could advertise the musical on your site, and everyone would be better off. Simply expecting them to do so and then getting upset that they didn't, doesn't seem right.
However, even if they chose not to do that, look at ways to capitalize on their efforts, just as they were capitalizing on yours. So, why not put on the site "as seen in a major musical production..." or something along those lines. Or even looked at ways that you could set up an affiliate program to sell tickets to the musical and get a cut back yourself.
And, then, use that fact to try to bring on other sponsorship as well, pointing out to potential sponsors that your concept had become so big that it was now a musical and soon to be a movie.
In other words, keep doing what you've been doing, where both sides help each other out, rather than focusing on claiming that one side "owns" all of the concept.
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Tough noogies
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No Squashing Teacher Creativity
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Flat Stanley Project
Mike, I'm enjoying this thread and appreciate your input, but perhaps we're at a place where the content becomes so specific to my particular case as to be of little value or interest to the general observer.
Even very skilled lawyers recognize that this is a complex situation. Where does the original flat character end? Where does the new character from the Flat Stanley Project begin? How much of an overlap is there between the two?
I do appreciate your input and would like to continue this discussion, but not on a public forum. I hope you will contact me and we can continue this more privately.
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Flat Stanley
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Who owns what
What *your* article completely glosses over is the fact that the original author had rights to Flat Stanley. You don't mention it being a bad idea for HIM to have a trademark on Flat Stanley. I personally happen to believe in owning ideas I create with my brain just as much as I own the house I built with my hands. But that's not the point.
But what really kills me about people who make arguments like yours is that you only pick the side of the story that suits your argument. Why didn't you say how bad it was for
Brown to own Flat Stanley. No that's okay, it's only when somebody tries to steal his property that you get all up in arms.
Regardless of what the 'right' answer is about intellectual property, it is people like you who sour it for everybody.
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