Intellectual Property and Fandom: An Interview with Courtney Lytle

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Photo courtesy of Courtney Lytle
Photo courtesy of Courtney Lytle

Courtney Lytle is a practicing attorney and an adjunct professor at Emory University School of Law. She specializes in intellectual property law, an area of particular interest to fandom in general and to fanfic writers, cosplayers, and fan artists in particular. She regularly speaks about intellectual property at professional conferences and fan conventions.

Daily Dragon (DD): What does intellectual property law cover?

Courtney Lytle (CL): Intellectual property law includes patents (which basically protects inventions such as machines, new medicines, and chemical processes), copyright (which basically protects creative expressions like novels, movies, paintings and songs), trademarks (which protects consumers by giving companies unique rights to identifying elements like brand names, slogans and logos), and trade secrets, which is really just a way to have the law help a company or individual keep valuable information out of the hands of the public and competitors. An example is the Coca-Cola formula–it is literally kept under lock and key in vault to keep people from learning it.

DD: Why did you decide to focus your career in this field?

CL: A big reason I was drawn to IP is that intellectual property law is fun. Other professors and lawyers have to deal with tax code or criminal situations. In intellectual property we talk about novels and movies and famous brands. When I was at a big firm earlier in my career, I started doing trademark work because the client that really needed it was rather colorful and the other attorneys didn’t want to deal with them. I thought the client was a hoot, and it got me started away from traditional Mergers and Acquisitions work and into Intellectual Property.

DD: What’s the difference between copyright and trademark?

 

CL: Copyright protects an author’s rights in his or her creative expression. It covers art, music, film, novels and other creative products. Copyright law was established with the intention of encouraging the creation of artistic works so that society can benefit both by the creation of art but also by the existence of a robust public domain. Trademark, on the other hand, is really a consumer protection law. It ensures that when you buy a red can of cola with a white swoosh and cursive writing that you can be certain you are buying Coke. It covers brand names, slogans, logos etc. and allows the company or individual to keep others from using confusingly similar identifiers. Obviously the trademark owner benefits too by being able to develop a strong brand, but it is really about protecting the consumer.

DD: What do you think about the recent attempts to trademark ordinary words from the dictionary for use in books or as series titles?

CL: As a general rule neither trademark nor copyright law will allow anyone to in effect own a common word or phrase. No one can own the word apple, for instance in the general fruit meaning. As an identifier for a particular brand of computer, on the other hand, there is no risk that anyone will be able to restrict the word in its regular dictionary meaning. Applications trying to push the limits of the law are common; hopefully the results will be what they should be; no one gets to own regular words and keep others from using them.

DD: How did you decide to teach and write a textbook in addition to practicing law?

CL: Several years ago, I was able to convince Emory Law School to let me teach an unusual course of my own design that combines IP law concepts with a transactional skill set. It became obvious very quickly that no course materials existed in the marketplace, so I developed my own text to use in my class. One of the big publishers that I had contacted in my search for a text, Lexis/Nexis, was launching a new series of skill based texts, and they asked if they could publish mine. It was a fun process, so I am working on a couple new writing projects as well.

DD: One of your presentations at Dragon Con is about fair use of intellectual property. What does “fair use” mean?

CL: Fair use is a copyright law issue. It is a defense that an infringer can raise to defeat the action for infringement. It is sort of like claiming self-defense or insanity in a murder trial. Basically if the infringing use is deemed by the court to be one that, as a matter of policy, should not be punished, the use is deemed “fair”—thus, “Fair Use.” It applies in cases where the infringement really is considered to do no harm to the original author’s rights. Quoting small amounts of a book in a news story or a book review is an example. A use that doesn’t really impact the market for the original book, like limited classroom use, may also be considered fair. It is a very popular concept, because a clever litigator can find lots of ways to stretch this rather flexible doctrine to cover lots of uses that would otherwise be clear infringement.

DD: What do you think is the most common misconception about fair use?

CL: The most common misconception is that fair use is a real right. People think they have some independent right to use other people’s creative works because of fair use. They equate it with the right to free speech or freedom of religion. The truth is, fair use is a defense to an action for infringement. In other words, fair use is relevant only after the infringer has been sued. He or she may indeed win based on fair use, but an infringement trial is often long and always expensive. Most individual artists aren’t really able to afford the trial costs and can’t get to the point that fair use might excuse the infringement.

DD: When did you attend your first science fiction convention?

CL: My first con was a Star Trek Con I attended in DC with my best friend my senior year in high school. I got several cool movie photos that I put on my dorm wall in college. Grace Lee Whitney was the big guest; she sang a song about roller skating. That part was rather odd, but my friend and I loved the con over all. Dragon Con was the first major con I attended and the first time I attended was not too many years after it began. Dinosaurs roamed the earth back then, but the con was much smaller, and I actually went with my martial arts school to do a demo as part of the programming. We were nowhere near as professional as polished as the programs here today.

DD: What draws you to work with conventions like Dragon Con and participate in their programming?

CL: Most of the time, being a transactional lawyer means that I can’t really help people with what I know. Even with a specialty in IP, I am not much help to people with the typical lawyer issues like “my girlfriend got pulled over when she’d been drinking and….” or “my deadbeat ex is threatening to change our custody arrangement…” or “I was told I really need to have a will….” Here at Dragon Con, and at other cons at which I’ve spoken, I have been surprised, and really thrilled, by how interested people are in basic copyright and other IP areas. It is really a ton of fun for me to share my knowledge with them. I love teaching, and speaking at events like Dragon Con combines teaching with being able to help people better understand how to protect their own writing and art. We even have a sponsor, The High Museum of Art, for one of my presentations at the Art Show. I don’t think I’ll be covered in patches like a NASCAR driver any time soon, but it is an exciting development.

DD: When does a creative work enter the public domain? How do you see that affecting the futures of characters like Superman, Sherlock Holmes, and Flash Gordon?

CL: That’s actually a fairly complex question. Any work created before the 1976 Copyright Act has a rather complicated term based on not just when the work was published but also by whether the author complied with various legal formalities and requirements, including a timely application for renewal. Without renewal, the term ended after 28 years. Depending on what year the work was published, if it was renewed, the total term would be either 56, 75, or 95 years. Works created after 1978 have a term of the life of the author plus 70 years. When the copyright term ends, the work becomes part of the public domain.

As for the impact of works entering the public domain, it basically means that the author, or the author’s estate as the case may be, can no longer control the work. Other people can use the work, write sequels, make comics or movies out of novels, use music in new compositions, and so on. US copyright laws were actually authorized in the Constitution with the express intent of encouraging the creation of new works so that the public domain would be rich and robust. So seeing famous works fall into the public domain really means that the law is working as it should. Some people want to be able to exploit other people’s works more easily and argue that the term of a copyright should be shorter. Some people want their creations to have protection for a longer period of time, so they and their heirs can continue to benefit from their creations for a longer period of time. Congress tries to find the right balance, but obviously it does not make everyone happy with its choices.

DD: How can interested parties find out whether a work is in the public domain?

CL: Copyright.gov is the best source. Newer works are searchable, but many of the old works can be a real challenge to figure out. Records aren’t all digitized, although the Library of Congress is working on it.

DD: What’s next for you?

CL: That’s actually a really good question. I am working on a couple academic projects, a negotiations textbook and a law school survival guide, but when my son leaves for college in a few years, I will be looking for a new focus in the approaching “post mom” years. Not sure yet what it will be, but I know I will be teaching law classes and speaking at Dragon Con as long as they’ll let me.

DD: Thanks for your time.

About the author

Nancy Northcott is a lifelong fan of comics, science fiction, fantasy, and history. She's the author of The Herald of Day, the first book in the Boar King's Honor historical fantasy trilogy, and the Light Mage Wars paranormal romantic suspense novels. Collaborating with Jeanne Adams, she writes the Outcast Station space opera series.

Website: http://www.nancynorthcott.com

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