Copyrighting the Ogopogo Monster: The © story behind the news story

Kat friend Hugh Stephens describes the murky story of IP and the Ogopogo monster ("murky" as the waters in which the Ogopogo is said to dwell).

The headline --“City of Vernon transfers copyright to legendary Ogopogo to B.C. Indigenous nations”--was featured in newspapers and broadcasts across Canada, based on a Canadian Press article. For the uninitiated, the Ogopogo is Canada’s version of the Loch Ness Monster, supposedly residing in the depths of Lake Okanagan in the interior of British Columbia, near the City of Vernon.

The City of Vernon’s decision was certainly consistent with the current spirit of reconciliation with Canada’s First Nations, but something didn’t seem right. How could the City of Vernon own the rights to a mythical, folkloric lake creature, similar to the Loch Ness Monster? Surely no “author” had created the Ogopogo, supposedly a green, serpent-like creature that creates harmonic ripples as it swims, so no one could claim copyright.

Perhaps the right involved was actually a trademark registration, and the journalist had got it wrong? A press report indicated the registration had been made in 1953 by Arthur “Gil” Seabrook, a local broadcaster, as a civic promotion. He subsequently assigned his rights to the City of Vernon. Seabrook’s 2010 obituary says that--
…as a marketing / promotion effort, he personally obtained the registered trade-mark for the word “Ogopogo” and an artistic rendering of the famed lake monster. This, much to the chagrin of…other Okanagan cities. Eventually the rights to use “Ogopogo” were offered to the City of Vernon, where it remained dormant….
The author decided to search the Canadian Trademark Database for information on what had been registered under the mark "Ogopogo". He found 17 entries related to a range of products from books to wine, chocolates, suntan products, clothing, and soft drinks. There are also many businesses that use the name without registration, such as Ogopogo Giftland, Ogopogo Lawn Sprinklers, and the Ogopogo Motel. Many of the marks had lapsed due to non-renewal, and none was in the name of the City of Vernon.

He then searched the Copyright Database maintained by the Canadian Intellectual Property Office (CIPO). There were 18 registered copyrighted works related to the Ogopogo, including books, posters, artwork, videos (in some cases, supposedly of the creature itself) and dramatic works. However, since it is not compulsory to register a copyright, there are likely more unregistered works out there, based on the Ogopogo, that are subject to copyright protection. And the database only goes back to 1991.

So, what did Seabrook register under copyright? Unfortunately, while CIPO’s database records registration, it has no copy of what was registered.

The Ogopogo “trademark” had apparently remained dormant after Seabrook transferred it to the City of Vernon. Thirty years later, in 1984, local author Don Levers wrote a self-published children’s book called “Ogopogo-The Misunderstood Lake Monster”, that sold well. Levers had heard the stories about Vernon owning the Ogopogo copyright, so, playing safe, he asked for permission to use it in his book, which was freely granted.

Fast forward to March of 2021 and Levers decided to publish a sequel, this time with a publisher. Once again, Council was approached for permission to use Ogopogo. Press reports incorrectly stated permission was required “because the city has the copyright to the word Ogopogo”. Once again, Council agreed but that is when the cultural appropriation issue suddenly came to the fore.

The City of Vernon’s heretofore long-forgotten and dormant copyright ownership was suddenly—and uncomfortably for Council--put into the spotlight. Questions were suddenly raised about why the City of Vernon held title to the name Ogopogo when it was based on a native legend. Didn’t the Syilx First Nation really “own” Ogopogo?

                    "I'm Ogopogo. If you are looking for Lizzie, she went back to Scotland last week,"

The Guardian picked up the story, framing it as an Indigenous nation trying to reclaim its culture. Council quickly decided to relinquish its copyright and assign it to the Okanagan Nation Alliance. The Globe and Mail reported that—
For $1, council voted to assign and transfer to the Okanagan Nation Alliance all copyright, title, interest and property including trademark rights arising from the commercial and non-commercial use of the Ogopogo name.
Except that is not exactly what happened, as the City of Vernon Council Minutes make clear. What was transferred was all copyright, title etc. “in the Work”, not the name Ogopogo. So, what was the work registered under Copyright #102327 on June 9, 1953.? We may never know.

The original copyright certificate simply says that Seabrook registered an “unpublished literary and artistic work entitled Ogopogo”. An unpublished work can be copyrighted as long as it is “fixed”, but since it was unpublished, it may no longer exist. And remember, when a work is registered with CIPO, no copies are retained. The City of Vernon appears to have no idea of what the work contains, and Seabrook is no longer around to ask.

Why did Levers’ publisher approach the City of Vernon to clear the copyright in 2021, when over the years multiple books have been published about the Ogopogo without doing so? After all, the City of Vernon only owned the copyright to an unpublished work. Apparently, it was out of an excess of caution and due diligence, just in case there might be a challenge.

Once Levers’ publisher finally got a look at the rights held by the City of Vernon, he realized no permission was required. Nothing in Seabrook’s unpublished work was used in the sequel. The copyright approval request would have been a non-issue if the media had not jumped on the reconciliation angle.

Although the City of Vernon never had the copyright to the name Ogopogo, its renunciation makes a good hook for a story about reconciliation. The Okanagan Nation appreciated the gesture, even if all they actually got for $1 were the rights to an unpublished work. More important, perhaps, is they got recognition of the fact that the lake creature is indelibly linked to their traditional culture, and an acceptance that they should have some say over it.

There is one final, ironic point regarding the name Ogopogo. Although native groups had an oral tradition of a lake creature, it had an entirely different name. It was known as N’ha-a-itk and was probably never considered by the original peoples as an actual creature but rather the spirit of the lake.

According to the BBC, the name Ogopogo was actually conferred by tourism officials in the 1920s and drawn from an old English music hall song (listen here).

The N’ha-a-itk of the Syilix and the Ogopogo that was labelled by officials keen to promote tourism have become very different things, although springing originally from the same source. You cannot put that genie back in the bottle. For better or for worse, the well-known Ogopogo name and image will continue to adorn wine bottles, boxes of chocolates, motels and RV parks, bed and breakfast establishments, a stucco and masonry business, a gymnasium, a moving and storage outfit—even an air cadet squadron, and will continue to feature in books, plays, and artwork.

If the City of Vernon did not hold the copyright to the name Ogopogo, then neither does the Okanagan Nation Alliance (ONA), despite the assignment of whatever rights the City of Vernon had--or thought it had. People remain free to continue to express their own idea of what the Lake Okanagan water spirit is, what its characteristics are and to tell stories about it. They can also continue to copyright those artistic expressions and creations, but hopefully will do so in a way that is respectful of the creature’s cultural connotations.

Picture is courtesy of the author.
Copyrighting the Ogopogo Monster: The © story behind the news story Copyrighting the Ogopogo Monster: The © story behind the news story Reviewed by Neil Wilkof on Tuesday, November 01, 2022 Rating: 5

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