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The cat's real name was Ledaig and he was one of three ginger toms that live in the town. He was well known to the locals and slept all over public and private property. Stewart created a Facebook page for him in February 2011 (check out the handsome chap on Facebook here and on his own website here), several months prior to the commission of a children's book by Birlinn. But what, exactly, was the legal basis for the alleged infringement? It has been a little tricky to get a handle on what the artist claimed copyright in; at points it appeared to be rights in the title and at others, to the concept of a fictional celebrity cat from Tobermory as expressed on a Facebook page. Essentially, it appears to have been the idea of the cat that was contested, and it is almost trite to restate the basic principle that a concept or idea is not capable of copyright protection. On the face of it, there does not seem to be a case for copyright infringement against the publisher and author. However, trade mark proceedings appear to be afoot. Stewart is currently seeking trade mark registration for 'Tobermory Cat', and if a letter alleged to be from the publisher's lawyer posted on the Facebook page is accurate, it is likely to be subject to opposition proceedings if registration is accepted.
So why has this Kat brought this bit of news to the IPKat readers attention? Well...a cat, copyright and publishing were involved, but also because the dispute deteriorated into an iniquitous internet campaign against the author because of the misapprehension of the basic rules of copyright. Gliori was named on the Facebook page and has since been victim to abuse on Twitter (she has blogged about her experience here), while the publisher reports receiving hate mail and anonymous phone calls (as reported by the Guardian here)...all over a ginger tom cat, that slept on cars and lived in Tobermory. Copyright can seem curious at times, but not as curious as how artists and authors who are meant to benefit from copyright protection can occasionally be unknowing of its substance.
Remember Remember the Rules of Copyright Protection: The Tobermory Cat
Reviewed by Kate Manning
on
Monday, November 05, 2012
Rating:
Reviewed by Kate Manning
on
Monday, November 05, 2012
Rating:
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Posts
20 years ago I had a cat called Tobermory (Toby for short) named after the Saki short story. Surely, there must be some royalties due to me?
ReplyDeleteIt's a curious fact of life that people view the world through their own experience. Both authors in this case seem to have done so. And we in the IP community are likewise guilty. Why assume that artists would even think copyright was relevant to moral indignation over the paternity of their ideas? They are not in our frame of reference.
ReplyDeleteMoral relativism DOES have a role to play here. An IP lawyer might regard the aggrieved artist as an ignoramus because of the evident lack of any understanding of copyright. But that does not take away from either his right to feel outraged (a right everyone has, however misguided) or his right to accuse someone else of stealing his ideas (again, a right everyone has, however misguided).
What we have here is a classic example of the right of free speech which includes the right to hurt feelings and cause offence. The author may not like it, and she has my sympathy because the artist is behaving in my view like a spoilt child, but a feature of a free society is that people can say hurtful things and behave in a spiteful and childish manner, and that is their right.
The best answer is to go onto the next project and get more information out there. The best way to deal with stuff you don't like is to bury it in stuff you do, not to shine a spotlight on it. She should go back to Wikipedia, cover it in good stuff, and ensure that the bad stuff is at least in context and accurate. The controversy will then be item 400 in a litany of success and if anyone reads that far, they will ahve it in context.
Since there are trade mark rights being asserted for the colour pink for fiberglas, brown for delivery trucks, red for shoe soles, then why not ginger for cats?
ReplyDeleteThat would be another possible cause of action for this poor fellow from Tobermory to mull over.
I think a big part of the problem is that in recent years the copyright maximalists have gone on about 'theft' (wrongly). The lobby groups have told everyone in the media, and government that copyright is to protect artists, and make them rich, and protect 'things'.
ReplyDeleteNow we have the consequences of that. This is what you get after 30-odd years of copyright, trademark, and patent maximalism; worse insinuating they're all similar and 'stealable' by labeling them Intellectual Property.
Expect this sort of thing to increase. (and why do you think so many 'creators' are involved with the pirate parties, pushing reforms to stop the spread of ignorance by correcting the entitlement mentality.
Bit ironic complaining about theft, isn't it, when the cat nicked its name in the first place from a Womble?
ReplyDeleteA most interesting post. I would prefer not to refer directly to my Tobermory Cat dispute so my comments are completely hypothetical, my interest being in the general principals of creative rights.
ReplyDeleteOn the topic of creative rights and without naming any examples, you suggest things are always clear cut, it is not possible to copyright a title or an idea. This may defend and encourage creativity – but it may also act as a defence for the lazy, opportunist and less imaginative. You suggest you can take the same title of an existing work and also a series of ideas also from the same work. You do not say how far down a line of ever increasing similarity before it becomes unacceptable. James Bond child wizard at a boarding school may be acceptable, but James Bond secret agent may well be a problem.
Theoretically, it would be possible for a large company to adopt a brazen opportunist strategy which exploits both at the same time, you cannot copyright a title or an idea. They look for ideas for their work They produce the work for a different audience in a different form and use different words but they use the same title and ideas. There comes a point where repeating this “ no copyright of title or idea” mantra makes little sense because in some cases it will go beyond that and becomes a case of unauthorised adaptation.
I should imagine there are rights attached to the adaptation of a creative works and the original creator may hold those rights. An adaptation will not be a direct copy of the work - because a different platform may require a different treatment – be it for film, comic, performance, kids book etc Should a large company, having visited an author with a view to adapting their work, find that the author does not agrees for use of the authors work, may the publisher then rightly claim their work was created independently of the authors work? The publishers book would have the same title, character, setting – in short be very similar indeed, but embroidered by another hand. It seems an author must accept an offer from a publisher.
Adaptation of a work may seems similar in principal to translating a work into a different language. I do not think the translator of a work into Chinese would rightly claim that they created the original work. The translator of the work may be skilful and it is not unheard of for a book to be improved in translation. The title would be in a different language, every single word would be different, but the story told would essentially be the same. I do not think that translator would normally claim to be the creator of the work though they may be extremely skilled at translating.
How may an author defend against unauthorised adaptation or translation of their work when faced by company which suggests their work is different and they have deep pockets? The tools available seem to be rather limited. Hypothetically would you agree that such a situation may occur and though legal means may seem appropriate to a IP lawyer, that option may sometimes not be first choice for a first time author – I imagine hypothetically – if you get my drift.
A general question about descriptive terms.
ReplyDeleteIt seems the traditional shouts of "stop thief" is not used in matters of intellectual property theft – unlike in a situation where a skilful pickpocket is discovered making off with ones thermal underwear. For matters of intellectual property theft should one refrains from calling out at all? By doing so would that be judged an “iniquitous "act? If one were to shout several times would that become a “campaign”? Even know such terms trouble me. Thanks.
Another general question about fan fiction.
ReplyDeleteSome well established authors may not wish the central character ( particularly if that characters name is also the title of their book) to be used in a work of fan fiction. Similarly a first time author may also be mindful of the economic impact upon their fledgling work /project and may preferring to retain the future rights to that work, benefit exclusively from their promotional efforts for that work and may not wish to compete directly with a work bearing the same title ( especially with a well established publisher). Imagine a situation in which a first time author is approached by an established author who intends to producing a work of fan fiction based on an existing fictional work. Would it seem reasonable to request that they use another name for their character in their yet to be started work? Such a request may not have been offered by way of obligation due to some assumption that there was copyright in a title – it may be offered by way of common courtesy, allowing both works to progress independently of each other. What is normal in cases of fan fiction and what best serves creativity? Thanks.
A simple question about the existence or not of a Tobermory town mascot.
ReplyDeleteRegarding your suggesting Tobermory Cat “ was a footloose fancy-free mascot that belonged to no one and everyone” . As a resident of Tobermory I was surprised to first read in Wikipedia that Tobermory Cat was something of a long standing and well known town mascot for Tobermory. This fact seemed to have appeared in early November 2012, coinciding with the publication of Ms Gliori and Mr Andrew’s book in early November 2012. Naturally this “fact” coloured a number of newspaper articles. One may have opinions about why this “fact” appeared in Wikipedia, but it had an effect, such an example can be seen in your adoption of the mascot fact.
The question arises, could Wikipedia function as a place to engineer and creating facts rather than present a neutral point of view?
Some edit histories on Wikipedia suggests neutrality can sometimes be difficult. http://en.wikipedia.org/wiki/Talk:Debi_Gliori I had not contributed to or suggested changes to Wikipedia and played no part in the truth battle there. When the matter had run its course during the high profile book launch centred around stories of horrendous internet abuse, I did contribute. My contribution remains – perhaps because I am better placed to know about Tobermory than a writer / East of Scotland Wikipedia editor.
I hope that helps. Cats are a constant source of amusement, thanks.
Curious to know if you would be agreeable to a larger well funded publishing company starting another IPKat blog because they see your blog is well regarded with nearly a million followers? These enterprising copycats could rightly take your posts and repost them using different words - pass them off to their audience as "The IPKat" and claim to be the creators of The IPKat. They could transform the meaning and intent of your posts to suit their purpose - promoting things that you do not wish to promote. They could also produce a line of merchandise; IPKat teaching material for children for example. Should you object they will likely claim that you cannot copyright a title or idea - and in addition they will claim that by taking any other name for their work they would damage the prospects of their work. Sorry to keep on about this but it continues to drags on for me. T.C.
ReplyDeleteYou state ;
ReplyDelete"The Tobermory Cat isn't the only famous feline associated with the town. In 1911, Saki's short story 'Tobermory' was published in The Chronicles of Clovis. The title is the name of a sharp-tongued and quick-witted '"Beyond-cat" of extraordinary intelligence' (sounds familiar)."
Should one read Saki's story expecting to find some mention or reference to the town of Tobermory one would be disappointed.
Saki's use of Tobermory may be likened to the use of Iona, Shona, Isla, Arran or India as a nomenclature because the feline has no tangible association with the town of Tobermory in Saki's work. The name and association is slight or incidental. T.C.
ReplyDeleteUSA Tobermory Cat trademark opposition update.
http://ttabvue.uspto.gov/ttabvue/ttabvue-91214145-OPP-10.pdf
UK update; Edinburgh Sheriff Court,30 October at 10.00 o'clock
ReplyDeleteCat fight! Tobermory Cat v Birlinn. T.C.
Final comment. Hats off for the UK IPO Mediation Service. T.C.
ReplyDelete
ReplyDeleteJoint Statement by Angus Stewart and Birlinn Limited
Angus Stewart and Birlinn Limited wish to announce that they have resolved their dispute over the right to use the name Tobermory Cat in creative works involving similar cat characters. A framework has now been agreed which allows both works to co-exist. With this agreement in place the two parties now look forward to producing further creative works centring around the famous Tobermory Cat.
Angus Stewart, The Breadalbane Street Studio, Isle of Mull Tobermory
Hugh Andrew, Managing Director, Birlinn Limited
https://www.facebook.com/tobcat/photos/a.206012466080893.66741.206004942748312/1168441213171342/?type=1&theater