'We're counsel for Warner Bros.'
The nightmares of a small publisher in the world of Big Entertainment
Welcome to the 119th edition of SHuSH, the weekly newsletter of Sutherland House Books. If you’re new here, hit the button—it’s free:
This week, we published a book by the talented Jaime Weinman on the history of the Looney Tunes cartoon franchise, which he considers the high-water mark of American filmed comedy. About six months ago, as the manuscript was being copyedited, we began working on the promotional copy. We came up with this:
Surreal, irreverent, philosophical, and riotously funny, Looney Tunes have maintained their power over audiences for generations and inspired such giants of the cinema as Mel Brooks, Steven Spielberg, and George Lucas.
Here, finally, Weinman gives Bugs Bunny, Daffy Duck, Porky Pig, Yosemite Sam, Foghorn Leghorn, Tweety, Sylvester, and the cast of animated icons their long-awaited due. With meticulous research, he takes us inside the Warners' studio to unlock the mystery of how an unlikely band of directors and artists working in the shadow of Walt Disney created a wild, visually stunning and oh-so-violent brand of comedy that has never been matched for sheer volume of laughs.
At the same time we were writing promo copy, we worked on the book’s cover. Here was our first draft. I was quite pleased with it:
Looks fun, no? We figured we had it nailed and moved on to other matters. Then Jaime spoke to one of his sources who had also written about the Looney Tunes franchise, owned by Warner Brothers. This guy warned against using the phrase Looney Tunes and any Warner Brothers cartoon art on the cover. The company has a reputation for enforcing its trademarks, and the phrase Looney Tunes and the images of the cartoon characters are trademarked.
Despite practicing journalism since the 1800s, I hadn’t much experience in trademark law. Libel law, plenty. Copyright, some. But trademark, almost none. I can remember it coming into play only twice.
First, with Stetson™, makers of a brand of cowboy hat, who will write you an officious letter if in a news story you refer to a cowboy hat as a Stetson™ and don’t use the trademark™ symbol. Even if you say the Stetson™ is beautiful and tell everyone to buy one, they’ll still respond with an officious letter if you fail to ™ it. I’ve never understood why they wouldn’t relax and let their brand be synonymous with their product—it hasn’t hurt Kleenex, Xerox, Taser, Thermos, Frisbee, or Google—but that’s their choice.
The other stickler was the IOC. The International Olympic Committee will come after you if you use its five-ring symbol on the cover of a magazine or on the front page of a newspaper, even in the context of Olympic coverage (i.e., even while promoting their games). Their intention is to protect their billion-dollar sales of rights to broadcast partners. It stands to reason that a broadcaster, after coughing up billions for the rights to televise events, wants to be the only source of news and information using IOC trademarks in its coverage. How else can you tell official partners from hangers-on?
Jaime and I did enough research to learn that both our proposed Looney Tunes title and the image of Bugs and Daffy were problematic. Especially the character images. We learned that the law does not consider silhouettes of characters to infringe on trademark which is why you sometimes see things like this:
We gave silhouettes a shot but couldn’t come up with anything we liked so waved goodbye to Bugs and Daffy and the rest of the gang, at least as far as the cover was concerned, and explored other directions.
Still wanting to use Looney Tunes: The Biography as the title, I asked a lawyer friend if we really needed to be so wary of Warner Brothers. He said yes. Warner, Disney, Marvel are all reputedly vigilant about trademarks. He referred me to a Canadian trademark specialist who for $500 told me that using Looney Tunes as the title was a risk, probably more so in the US than in Canada where trademark law is not stacked in favor of trademark holders (I’m editorializing here). The specialist said Warner would argue that we were stealing its intellectual property to sell books. I answered that we were using the words “Looney Tunes” so readers would know what the damn book was about. He was unconvinced so we reverted to a title Jaime had suggested in our very first conversation about the project: Anvils, Mallets & Dynamite.
I didn’t much mind the switch. I’d always liked that title. We dropped “Looney Tunes” to the subtitle: The Unauthorized Biography of Looney Tunes. Our trademark specialist said this, too, might incur the wrath of Warner, although he didn’t think the company would have much of a case with the addition of “unauthorized,” which made clear that we weren’t trying to pass the book off as an official Warner Bros. product, and the relegation of “Looney Tunes” to a merely descriptive role (rather than a headlining role) on the cover. He said that if we wanted to avoid legal entanglements altogether—and what small company wants to be entangled with a deep-pocketed multinational entertainment company?—we would be best not to use “Looney Tunes” anywhere on the cover.
So there we were, with a choice between not stating on the cover what the book was about, and waving a red flag at Warner legalists. It was frustrating as hell. We weren’t trying to sell knock-off Tweety dolls. We just wanted to say something interesting and important about a cartoon franchise that had been famous around the world for almost a century, and we wanted book buyers to discern what the book is about in the half-second glance they give to the average book cover on the average bookstore shelf. But if we took the chance and put “Looney Tunes” on the cover and Warner sent us a writ, we’d have to lawyer up and fight to keep the title in circulation. At best, we’d lose money on the book. At worst, it would be scrapped and we’d lose money on the year. Or go broke fighting.
We thought about asking Warner Brothers for permission to use its trademarked images and language on the cover but were told that they’d probably want to see the text. That would have put us in the awkward position of seeking Warner’s approval to publish a critical essay about its cartoons, which didn’t seem right.
Unwilling to spend more on lawyers, I begged a favor. My last book was vetted by a senior legal counsel at Random House in New York. I very politely explained to him that I had this small publishing company with this potentially problematic cover and asked him if we were really out on a limb using “Looney Tunes” in the subtitle. He was gracious enough to respond and said he would be shocked if it created an issue. He explained to me the concept of Nominative Fair Use that in American law provides protection when you use a trademark descriptively as we were proposing to do. That’s how we ended up here:
Is it as immediately recognizable as our original? No. But trademarks are trademarks™ and need to be respected.
Quit erasing our past
We’ve been banging on here about Canadian non-fiction and the central role of the Canada Council in the demise of well-researched, fact-based books. A few weeks ago we had Biblioasis publisher Dan Wells on the subject. Last week, celebrated authors Mark Bourrie and Ken McGoogan joined the chorus. This week, we hear from the great Charlotte Gray, bestselling and award-winning writer of history and biography:
I am very happy to see your pieces about the slow death of Canadian non-fiction, and your despair at the gormless confusion of memoir and researched history (which is NOT always written from the settler point-of-view, as the Canada Council appears to assume.) With the demographic churn of today's Canada, and the heated debates about who did what to whom on our shared landscape, we need more accessible accounts, a wider range of approaches, and more rigorous factual accounts... not indignant rants and opinion pieces.
The great popular historian David McCullough wrote with despair about Americans, "A nation that forgets its past can function no better than an individual with amnesia." Canada has decided not simply to forget its past, but to deliberately erase it. Instead, we live in a sort of existential limbo, where we cannot decide if this is the best country in the world (great mountains, great health-care) or the worst (horrendous colonial legacy, corrupt politicians.) But the average Canadian has few contemporary sources to mine for reliable information.
Talking left of Jeet
PBS’s The American Experience launched a multi-part series on William Randolph Hearst this week. According to their promo writers:
In the 1930s, William Randolph Hearst’s media empire included 28 newspapers, a movie studio, a syndicated wire service, radio stations and 13 magazines. Nearly one in four American families read a Hearst publication. His newspapers were so influential that Adolf Hitler, Benito Mussolini and Winston Churchill all wrote for him. The first practitioner of what is now known as “synergy,” Hearst used his media stronghold to achieve unprecedented political power, then ran for office himself. After serving two terms in Congress, he came in second in the balloting for the Democratic presidential nomination in 1904. Perhaps best known as the inspiration for Orson Welles’ Citizen Kane and his lavish castle in San Simeon, Hearst died in 1951 at the age of 88, having transformed the media’s role in American life and politics.
My old colleague Jeet Heer wanted to talk about Hearst on his podcast and, remembering my 2009 book on the man, invited me to join. I watched the PBS series, which I don’t think is generally available up here. It is visually strong but its approach to Hearst is tired and cynical. Anyway, Jeet and I had a great hour-long conversation about the man, his newspapers, and his politics. As he describes it:
Our wide-ranging conversation covers not just Hearst but the history of 20th century media, the struggle between respectable broadsheets and tabloids, the American populist movement, the Spanish American war, the assassination of William McKinley, the rise of Theodore Roosevelt, the New Deal, Citizen Kane, Orson Welles, and some progressives turning into reactionaries.
I was disconcerted to frequently find myself to the left of Jeet, who writes for the Nation. And it was me, not Jeet, insisting that the US was right to take up arms against the Spanish imperialists who were committing genocide against the Cuban people (an intervention Hearst noisily encouraged). But it was the most fun I’ve had on a podcast. Jeet does a great job. If you’re interested, you can listen to it here. And if you’re really, really interested, the book is available here. Also, Jeet has a newsletter, The Time of Monsters, which we’ve added to our newsletter roll below.
Our Newsletter Roll (suggestions welcome)
Jeet Heer’s The Time of Monsters: political culture and cultural politics
Lydia Perovic’s Long Play: literature and music.
Tim Carmody’s Amazon Chronicles: an eye on the monster.
Jason Logan’s Urban Color Report: adventures in ink (sign-up at bottom of page)
Anne Trubek’s Notes from a Small Press: like SHuSH, but different
Art Canada Institute: a reliable source of Canadian arts info/opinion
Kate McKean’s Agents & Books: an interesting angle on the literary world
Rebecca Eckler’s Re:Book: unpretentious recommendations
Anna Sproul Latimer’s How to Glow in the Dark: interesting advice
John Biggs Great Reads: strong recommendations
THAT’S IT FOR THIS WEEK. THANKS FOR READING. PLEASE SIGN UP OR CONVINCE SOMEONE ELSE TO SIGN UP, OR SHARE, OR LEAVE A COMMENT: