Flat Stanley Learns How Ownership Of Infinite Goods Hurts Everyone

from the sounds-like-a-good-children's-book dept

Wed, Jul 30th 2008 1:13pm — Mike Masnick

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)

Now, the article, written mostly from Hubert's perspective points out (accurately) that without Hubert's involvement, Flat Stanley would most likely have been lost to history. Brown never would have come out with another book, and there would have been no musical or movie. And, clearly, the whole Flat Stanley project is very cool and fun for kids, and a great teaching device, for which Hubert deserves plenty of credit. But what the story totally glosses over is point number 10 up there, which I've put in bold. Hubert filed for a trademark on the character which he had no rights over. This was bad advice from his lawyer, but is common these days when people seem to think it's somehow natural to "own" ideas.

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, dale hubert, flat stanley, jeff brown, trademark

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 30 Jul 2008 @ 1:20pm

If Hubert had not filed for trademark then Universal would have and then claimed ownership of the education market.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 1:37pm

Sold the rights ?
9 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.

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.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 1:40pm

BTW
I understand the article is about the trademark. If the guy has a single brain cell, he should patent the concept so that he can retain some ownership of the idea, assuming that was his intention of the trademark. What a pissing contest this all is. Copyright = CopyFight.
[ link to this | view in thread ]
Anonymous Coward, 30 Jul 2008 @ 2:04pm

Not only were the two main two sides in this not hurting the other, each was actually helping the other and making the "Flat Stanley" theme even more valuable. It's another case showing the stupidity that results when lawyers are allowed to make business decisions.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 2:09pm

Re:
Actually, the lawyers will be making quite a bit of money off of this from both sides of the pissing contest. A very lucrative business indeed. Check your local phone book for attorneys you will see it's rather thick compared to most other entries.
[ link to this | view in thread ]
Reason, 30 Jul 2008 @ 2:26pm

Re: BTW
Except this isn't a patentable item. What is it that he would patent: Mailing a piece of paper? Taking a picture of the piece of paper? Setting up the website? Exactly what do you think is patentable?
[ link to this | view in thread ]
John Duncan Yoyo, 30 Jul 2008 @ 2:33pm

My daugther's class did the Flat Stanley project this year. The students color a Stanley and mail him to someone who takes him around. Stanley went all over the world. My in-laws took him to China.

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.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 2:49pm

Re: Re: BTW
Flat Stanley project is very cool and fun for kids, and a great teaching device

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 ?
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 2:57pm

The extent of absurd.
Now I'm just being sarcastic, but what if...
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
[ link to this | view in thread ]
Willton, 30 Jul 2008 @ 3:03pm

Re: 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.

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?
[ link to this | view in thread ]
Willton, 30 Jul 2008 @ 3:07pm

Re:
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.

Or perhaps it was suggested and later rejected by the parties.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 4:27pm

Re: Re: Re: Re: BTW
You place much more faith in patent examiners than I, that's for sure.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 4:31pm

Re: Re: Re: Re: BTW
Oh and by the way, YES they were granted the patent Wilton.
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
[ link to this | view in thread ]
Dale Hubert, 30 Jul 2008 @ 6:29pm

Flat Stanley Project
As the teacher who started the Flat Stanley Project, I find dropping into a site that analyzes my situation to be a little bit what it must be like to attend one's own funeral and overhear the comments of the mourners. I hope the funeral analogy isn't all that apt and that the Flat Stanley Project has a long and happy life ahead of it.

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.
[ link to this | view in thread ]
eleete, 30 Jul 2008 @ 7:22pm

Re: Flat Stanley Project
Very cool of you to comment, I sympathize with your situation, and agree about the differences in intellectual property disputes. Glad to see your comments, I will be making a contribution to your efforts.
[ link to this | view in thread ]
bikey (profile), 31 Jul 2008 @ 1:14am

flat stanley trademark
How easily we have come to accept that characters should be trademarkable at all. This was a ruse by Disney to extend Mickey's copyright into infinity and no one can afford to challenge Disney. Trademark is designed to indicate the authentic origin of goods. Mickey does not make goods, he merely appears as an image - classic copyright, no? Maybe this case will put paid to this long misuse of trademark law once and for all. In 1964, copyright extended for 28 years, renewable, but where not renewed, public domain after 1992, which is where Mickey would live today, where it not for the army of Disney lawyers twisting the law to their own desires.
[ link to this | view in thread ]
John Duncan Yoyo, 31 Jul 2008 @ 5:01am

Re: Re:
Having read the teacher's web site I doubt he would have rejected anything reasonable that would keep the website available.

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.
[ link to this | view in thread ]
drr, 31 Jul 2008 @ 5:12am

lost to history
You assume that the character of Flat Stanley would have been "lost to history", but the book's illustrator, Tomi Ungerer, is still living and working. So I wonder when "history" begins, in your opinion. Is it when you, personally, forget about something? I remember Flat Stanley very well, but I guess I'm history too.

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.
[ link to this | view in thread ]
drr, 31 Jul 2008 @ 5:15am

Upon rereading your article, I think maybe we agree more than disagree. I apologize for the misreading.
[ link to this | view in thread ]
Bignumone, 31 Jul 2008 @ 6:08am

Intellectual property
In my opinion, this is not so much showing the failings of intellectual property rights, as much as people not recognizing a good thing.
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.
[ link to this | view in thread ]
Peter Blaise Monahon (profile), 31 Jul 2008 @ 7:04am

Trademark the words
Well, Dale, what did Tomi say when you asked permission to copy his drawing?

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
[ link to this | view in thread ]
bikey (profile), 31 Jul 2008 @ 7:25am

Re: lost to history
There's no such thing as 'renew and renew and renew' copyright. It comes into existence automatically upon creation and expires automatically at the end of the term. Only the US once had mandatory registration (until it was forced to comply with the Bern Convention a mere 100 years after its appearance). In fact Bern prohibits such formalities. Copyright is easy.
[ link to this | view in thread ]
Anthony Kuhn, 31 Jul 2008 @ 12:03pm

Tough noogies
Intellectual property laws are complex and difficult to always follow. I'm not sure that this Flat Stanley case is very black-and-white when it comes to compliance with IP standards but I hope there's an equitable settlement in the making for both parties. Thanks for the article and I've linked to it in my blog post today for other interested readers to discover and read at Techdirt.com.
[ link to this | view in thread ]
Dale Hubert, 31 Jul 2008 @ 1:55pm

Re: Trademark the words
That's another interesting thing about my Flat Stanley Project - I don't have any images or other content from the book on my site. The flat character I use is a generic one, based on one Jeff Brown personally gave to me. Many participants even draw their own and stick their own faces on them and give them their own names.

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.
[ link to this | view in thread ]
drr, 31 Jul 2008 @ 8:18pm

Re: Re: lost to history
I know that's how it is now, but this site has discussed alternatives that would force copyright holders to keep renewing or keep materials in commerce or risk losing their copyright: see this article -- http://www.techdirt.com/articles/20080721/1442081747.shtml .

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.
[ link to this | view in thread ]
Mike (profile), 31 Jul 2008 @ 10:55pm

Re: 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.

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.
[ link to this | view in thread ]
Dale Hubert, 1 Aug 2008 @ 5:12am

Re: Re: Re: Trademark the words
By then I'd been doing the Flat Stanley Project for more than ten years and received nothing from the publishers, the estate, the makers of the musical... And it's true, they were under no obligation to support me for something that I'd chosen to do. I think it might have been a thoughtful gesture had HarperCollins offered to pay for advertising space on the site or to have hosted the site to save me that expense, but again, that was their choice. So the situation was I wasn't making any money from them, but when "the ultimate penpal" was used to advertise the musical and third parties were making money from something I'd developed, it seemed unfair.
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?
[ link to this | view in thread ]
Suzie Boss, 1 Aug 2008 @ 10:17am

No Squashing Teacher Creativity
You've overlooked an important step between #'s 5 and 6 in your list. It's teacher creativity. Teachers around the world took the spark of this idea and built their own ingenious projects. Dale Hubert was a visionary in forseeing the learning opportunities the Internet would open. He also set just the right tone by not telling teachers they had to work in a prescribed way. Instead, he left plenty of room for innovation, and learning has taken off in many wonderful directions as a result. Creative teachers (including Dale) will find a way to continue.
[ link to this | view in thread ]
Mike (profile), 1 Aug 2008 @ 11:00am

Re: 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.

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.
[ link to this | view in thread ]
Dale Hubert, 1 Aug 2008 @ 1:59pm

Flat Stanley Project
Of course, over the years, I'd already been in touch many times with HarperCollins, and other parties, but with no success. What you're seeing now is happening only after many years of my efforts to arrive at a mutually satisfactory agreement with the other players. I hope I didn't give you the impression that I suddenly embarked on this strategy without exhausting other, more reasonable approaches. I accept that the final decision was mine, but when a high-priced lawyer finally offers a strategy, the client's tendency is to go with the expertise and that's where the TM came from.

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.
[ link to this | view in thread ]
Nick Burns (profile), 5 Aug 2008 @ 11:12pm

Flat Stanley
Does anybody remember reading about Flat Stanley? I remember reading the book in grade school, I'm 40, so yes it was back in the 70's. I just can't believe the story was "lost".
[ link to this | view in thread ]
Stu, 16 Aug 2008 @ 8:45am

Who owns what
Why is everybody so stupid.

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.
[ link to this | view in thread ]
bill davidsen, 24 Aug 2008 @ 4:59pm

Re: flat stanley trademark
A trademark is an indication that something is an authentic product, if a car has a "bowtie" it is made by Chevy, blue oval for Ford, etc. If an entertainment product is marked with or contains Mickey Mouse it is a product of Disney.

You can take that any way you want, but it seems a clear trademark which signifies the creator of the goods.
[ link to this | view in thread ]
دردشه, 8 Jul 2009 @ 6:43am

There's no such thing as
[ link to this | view in thread ]