Copyright and Trademark Issues for Independents
by Hank Levin
Originally appearing in THE FREE SPIRIT JOURNAL in December 1989 published by the Council for Spiritual Integrity. and distributed worldwide. THE FREE SPIRIT JOURNAL serves as a forum for personal consultants, therapists and healers to share various new ideas and technologies whose purpose is to help people enhance their lives, achieve personal and spiritual fulfillment, and to help them become happier and more effective. THE FREE SPIRIT JOURNAL has an interest in seeing that people are allowed to share and exchange what wisdom they have without restriction or oppression from special interests. It has repeatedly come to our attention that people are still being intimidated from exchanging information in ways that would not happen if they were familiar with U.S. laws concerning copyrights, patents, trademarks, and the differences between them. Therefore, we have decided to re-post this article on this website.
I recently attended a lecture on copyright law for speakers and workshop facilitators, which was given to the professional speakers club which I belong to. The lecturer is an attorney who is a managing trademark counsel and copyright law expert, and works primarily for a major oil company.
After his speech, which I found most interesting, I introduced myself to him as the editor of the Free Spirit Journal, a non-profit publication, and asked if he would consider donating to me a private appointment in that capacity. Fortunately he agreed to do so, and several days later was kind enough to sit with me for nearly two hours answering questions and clarifying issues. As I relaxed in his beautiful San Francisco corporate office suite, I felt grateful that this man was for me and not agin' me.
Before I share with you all what was indicated to me at this meeting, let me lay forth my own disclaimer, to the effect that I will not be held liable for giving legal advice; that for purposes of deciding any important legal matters the readers of this article treat this data as hearsay, and confer with competent legal council on any specific matters of consequence. However, the subject matter in this article could be used as a guide in planning your interview with an attorney.
I had a number of questions which I felt were of interest not only to myself, but to many of us whose job is to help people using technology which has often been learned, purchased, taken, or otherwise derived from others. I explained that certain key ideas that many of us consider essential to our work have emanated from or passed through the hands of a Mr. L. Ron Hubbard. Though he seldom, if ever, gave credit to his own sources, Mr. Hubbard established a policy of ruthlessly attacking not only actual copyright violations of his allegedly "original" works, but also anyone whose work was felt to be derivative of his writings or ideas. Furthermore, per written organizational policy, Hubbard's "Church" of Scientology traditionally attacks any individual or organization whose operation is deemed to be competitive to itself, with a special vengeance against those who have become apostate. In this regard, the "church" is not acting in an unprecedented manner; but what is unusual is the resourcefulness with which the society's legal system, trade-mark, and copyright laws are used to devastate any who would independently share what they have learned of value from Hubbard's teachings.
I wanted to know exactly how copyright and trademark laws impinge on references to Hubbard's ideas, techniques, concepts and organization in the Free Spirit Journal. My questions centered around a practitioner's right to utilize a technique which has been published, or which he has been trained in, and adapt it to his own purposes without approval or license by the original authority. Must a lecturer disclose all the sources of his or her ideas when giving a public presentation? At what point does a professional courtesy become a legal obligation? When we write, can we protect ourselves by rewording the ideas? Or is it better to use direct quotes as long as we attribute the source?
Furthermore, I had questions as to the exact status of several books which I have found nearly indispensable in sharing with "raw public" clients the facts of the effects of suppression, emotional tone, and the ethical status of relationships (known as "ethics conditions"). These books in question were not written by Hubbard, but are clearly derivative of his work. The copyrights to some, such as Ups and Downs, and How to Choose Your People by Ruth Minshull are actually owned by Hubbard's Religious Technology Corporation, which has not published it for years since the author became disenchanted with the Church of Scientology. Yet the book has many fans among consultants and therapists whose clients find the books to be sensitively written in a style which is far more accessible than any available alternative. What is the prospect of these titles reverting to the author for revision and re-publication?
Finally, what is the consequence of the fact that the name Scientology® itself is taken from the name of a book published in 1934 by Dr. A Nordenholz-a book on the study of learning (epistimology) based on a set of Axioms! Does the existence this book have any bearing on that "church's" rights to the name? [Ed. note: This book is now available in both English and the original German from The Free Spirit Journal. Email us for particulars: firstname.lastname@example.org]
I had brought with me copies of the various writings I have mentioned, including some of my own.
"First of all," our friend explained, "we need to understand that in our legal system there are essentially four distinct areas of creativity which are granted protection." Here are the four categories he delineated, along with the specific aspects of originality which each is meant to protect:
1. Copyrights-protect originality of expression
2. Patents-protect ideas and procedures
3. Trade secrets-protect exclusive access to valuable information
4. Trademarks (and Service Marks)-protect names used in marketing
To have a workable understanding of our rights and obligations under each of these categories, it is essential to be able to distinguish between them. Independent practitioners have at times been seriously misled by confusing these four aspects. That confusion has perhaps been engendered and contributed to those who would control us and defend their own interests at all costs. Indeed, claiming our rights in a court of law may be something else altogether. But, my legal friend reminded me, the law never reaches out to protect anyoneÑit merely provides the tools for self-protection to those familiar with it! Let us examine the similarities, differences, and identities...
Copyright protects the expression of ideas, but not the use. It is meant to protect the writer, not the inventor or researcher. Suppose I were to invent a procedure to create a new petroleum product using refining technology, and I were to write this up in a trade journal or pamphlet for recognition. And suppose I were to protect myself only by copyrighting my manuscript (which occurs automatically, although one is advised to attach "© 1989 Hank Levin" to the work). If some oil company were to start using my article to set up and manufacture the product themselves, I would have no protection or recourse whatsoever. Copyright does not protect one from the use of my procedure if it has in fact been publicly published.
Now, suppose I discovered that they had made a literal transcription of my article, and distributed it to their design engineers and essential production personnel, rather than doing their own write-up. Then I would have recourse to damages under the copyright laws. Suppose they merely paraphrased it, substituting words here and there? Under current law this would still be considered an infringement. However, if the expression of the facts were substantially different from mine, especially if additional ideas were set forth, and only small parts of my text could be shown to be borrowed, this would be judged on a one-to-one basis. Attention would be paid to the percentage of my text which had been copied. Remember, the court would only be looking at the percentage of my expression that has been plagiarized, not the percentage of the over all idea which was mine!
There are several other factors to consider. These are called "Fair Use Issues". This means that under certain circumstances an author can be directly quoted. The First Amendment gives us the right to comment on anything written. Of course, attributing the source to the original author would lend more power to the argument that one is exercising the right of commentary. In fact, our expert said that one wouldn't even have to make a direct attribution-an indirect reference would do. ("A popular writer has said...")
Another consideration in the "fair use" issue would be whether the copied work was being used for educational purposes, or for non-profit use. If the work was being employed commercially, one could be much more liable. As mentioned above, the proportion used would have to be taken into consideration. If out of an entire book, three technical expressions were copied, this would probably be taken as an insignificant proportion.
Yet another important point would be that of the impact on the value of the copyrighted work. For instance, is it out of print? If I copy and distribute copies of a current exclusive financial newsletter which is being sold by subscription, that is a lot different from distributing two year old copies of the same newsletter-especially if the old copies are nowhere to be had.
Incidentally, to my question about whether there is a convention in the printing industry about whether a copyright reverts to the original author if the book has not been published for a certain length of time, I was told that this is not just a convention; since 1978 it is the law. However, the author must take action to secure the rights, as it is not automatic. Also, there is a timetable involved. Ruth Minshull, are you listening?
Now, a patent will protect ideas and procedures from unauthorized commercial use. Conceivably, the procedure for remedying a "missed withhold" could be patented. The trouble with that is that the determination as to whether the procedure can be shown to work is so subjective that it probably would not pass muster in the U.S. Patent Office, and this is true of most of Hubbard's developments. The simple fact is, his technology is not patented.
The prevalent confusion between patent and copyright was stated in a letter from Irene Mumford of the Dianasis Data Network. She wrote: "They (Hubbard's "church") have systematically enforced their reality on the Independents that copyright is a form of patent; that the use of scientology is protected by copyright and that in using or delivering scientology the deliverer is open to hassle and litigation. This has had the effect of either driving the tech-deliverers into less hazardous fields of endeavor or, worse, into hiding." Truly, a sad course of events.
Another way of protecting ideas and procedures is as trade secrets-which can be protected by a contract between the originator and someone with restricted license or authorization to use the material. The contract is only binding between the signatories. If someone else sees the materials published somewhere else (like in the Clearwater Times), they are not bound by the contract. Of course, enforcing such a contract would be contingent on the circumstances and the integrity and wording of the contract.
The final issue in the protection of originality is that of trademarks (or service-marks in the case of a service). Being the first to use a word as the name of a product or services gives one some privileges; affixing the "tm" or "sm" to the name gives one more. Once the name is fully registered with the federal government, one has the right to use the symbol "®", which is best. A trademark is a symbol which is used to represent a product or service in marketing. It does not "corner" the usual English language use of the word-only the utilization of the word in representing a service or product. For instance, Shell Oil Company cannot restrict me from discussing sea shells, or egg shells. I simply cannot use the word "Shell" as the name of a product or company for purposes of marketing-especially a petroleum product. (I might get away with "Shell Dry Cleaning," until it got big enough so it could be argued that I have confused the oil company's image.)
If the trademark is a manufactured name, like Exxon, there is less excuse for people to be bandying the name about. When was the last time you heard or read about exxons? Now, let's take the name "scientology". This, of course, refers to an intellectual process, originally discussed in 1934 by Dr. Nordenholz in Scientologie : Wissenschaft von der Beschaffenheit und der Tauglichkeit des Wissens (Scientology: Science of the Constitution and Usefulness of Knowledge and Knowing,.Berlin 1934) Thus, there is-as many of us have been saying all along-a distinct difference between scientology and Scientology®. (The First Amendment gives me the right to refer to Scientology® in stating that opinion!) If you do counselling, personal consulting, hypnosis or anything of the sort, you are strictly forbidden from representing it as Scientology®, or claiming any affiliation with that organization. However, there is nothing legally restricting you from describing your procedures as scientological., or scientology style personal processing. (Why anyone would want to do such a thing, however, is beyond me-I am constantly asked for reassurance by prospective clients that I have no affiliation with the Church of Scientology®!)
Now, that brings us to another issue. What about the fact that anyone can sue anyone else about anything? Well, yes, that is true. In fact, some organizations or individuals have been known to follow an explicit policy of using the legal system to bring their real or imagined adversaries to their knees economically, regardless of the merits of the accusations. My legal mentor shared several technical terms for this:
- specious lawsuit (vaguely plausible but not genuine)
- malicious prosecution (for which the plaintiff would be liable)
- abuse of process (for which their lawyers would be liable).
These are the "magic words" to remember. The legal system is set up to at least nominally discourage its own misapplication through the above methods, and on occasion awards substantial punitive damages to those who have been so abused. The exact differences between them should be a matter for further study, if you need them. But referring to those three will make someone think more than twice about harassing youÑanother useful term.
Just remember that the legal system will never reach out and hand you your rights-they must be knowledgeably and belligerently claimed. So if someone complains that you have infringed on copyrights in the course of your practice, ask your attorney how he feels about the following:
1) Insist that they contact you in writing, and put forth the infringement claimed, including the exact item (title, page, paragraph, line, etc.) and how you committed the infringement (title, page, etc.) Express a willingness to correct the situation if there is indeed a valid infringement.
2) You put the above request in writing to them. Indicate that in lieu of their compliance with your request, further contact from them will be considered harassment.
3) Log every contact from them, entering date and time, personnel involved (get their names) what was requested and how you responded. Then send them a copy. This creates a "paper trail" which may give credibility to your claim of harassment.
4) If you get a legitimate complaint, you have to work it out. Don't go into "denyal" about it-but don't propitiate. Discuss it with a copyright lawyer before you make any concession. And donÕt throw away the very extensive rights that you have by signing any of those stupid contracts that they shove on you.
I wanted to share this with you. Don't bet your life on what you read here, but do use it to form an intelligent line of questioning if you have to contact an attorney. It is conceivable that you could now contact one who knows less that you-if so, you've just found the wrong attorney, so get another one. Remember, attorneys are not trained to facilitate things, just to see how they could be stopped. So don't let this squelch your "create." We are not dying, we are growing. And we have more friends that you may know. More about that later!
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