"My work may be garbage but it's good garbage." Mickey Spillane
Dear Ms. Frank (and others),
I will begin by saying that this e-mail is being sent to you in the strictest confidence as legal correspondence. Its contents and allusions thereto are not to be posted to any public forum, mailing list, blog, LiveJournal, or other social networking web site, web app, or web service on the Internet.
We were encouraged by the e-mail quoted below, which was sent to us by Mr. Tim Willard on the evening of Sunday May 3 2009. We were encouraged by your clear intention to resolve this dispute amicably, as well as by your understanding of the issues at hand. Through all of this, it was our understanding that Mr. Willard is legally authorized to represent you and Daverana enterprises and to negotiate on your behalf. This is why we were shocked and flabbergasted when the following blog and Twitter posts had come to our attention, most of which were dated after the time of our correspondence with Mr. Willard:
* http://twitter.com/cussedness/statuses/1694024757 (” #polymancer a word I came up with on my own. My books made the rounds for years, were finally published, and I feel like I’m being raped”)
* http://twitter.com/cussedness/statuses/1694020136 (” Many, many years ago I created a word, polymancer, and now I’m being informed that I can’t use it any longer and must rip it out of my work”)
* http://twitter.com/kaolinfire/statuses/1691347280 (” twtpoll, RT and answer? What does “polymancer” mean to you? http://twtpoll.com/r/pvpng3″)
* http://twtpoll.com/r/pvpng3 (which includes embedding code)
* http://therustynail.wordpress.com/2009/05/03/polymancer/ (Folks, if any of you can recall where and when you first came across the word polymancer, please let me know. A link or two to back it up would be really sweet. In the meantime, poly-wannaquacker?)
o Which includes a number of libelous comments about the company
o Which also includes a full text citation of the US Copyright Act’s (aka Title 17, United States Code) “fair use” section; which is odd, because what you have done is a trademark violation, which is governed under a separate statute (part of Title 18 United States Code) and is a completely separate area of law; do note that nothing in the USCA’s “fair use” provisions allow for fair use of a company’s trademarks.
* http://therustynail.wordpress.com/2009/05/04/polymancer-2/ (“‘polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer, polymancer . . . Oh, and by the way, did I mention the word “polymancer?”’)
o Which includes a comment in which the commenter indicated the intention to encourage a friend to write a novella with the title “Polymancer,” which would be a trademark violation and to which the original poster offered no countercomment to indicate such or that such action is not encouraged by the original poster.
* https://cussedness.wordpress.com/2009/05/03/copyright-patent-and-trademark-rebellion/ (‘ Polymancer Studios were “tipped off” by Dagstine that I was infringing their copyright. My use of the word does not show up on a google search until page 65.’
* https://cussedness.wordpress.com/2009/05/03/copyright-patent-and-trademark-rebellion/ (‘Daverana has offered them a compromise, and they have told use that it will take a few days for their legal department to go over it I intend to stand my ground, but we’ll see where this goes.’)
I can see that you, and individuals associated with you, have been busy instigating a public relations war against Polymancer Studios, Inc.. Do note that we contacted Janrae Frank privately about this matter so that it could be resolved as cleanly and as efficiently as possible, so as to minimize damage and inconvenience to both parties. We are entitled under the Trademark legislation of the United States and other countries to protect the word that we use to conduct business in good faith and we lose the right to use our trademarks if unauthorized use effectively genericizes it.
My impression from our telephone conversation with Mr. Willard on Sunday, May 3 2009, was that you had the good faith intention to resolve this issue amicably and professionally, and not resort to antics on the Internet which, quite frankly, are as immature as they are unprofessional; not to mention, which could be used as evidence in litigation against you, both for trademark violation and for defamation (i.e., libel and slander). A question needs to be asked: do you truly wish for this to proceed to litigation? If so, all owners, officers, and employees of Deverana Enterprises can be held liable for both the infringement and for defamation; possibly, said individuals would have cause for action against Ms. Frank in such a case. Do you really want to take it to that point, as these vindictive, unprofessional, and defamatory posts seem to indicate?
The very last post quoted above alludes to Mr. Willard’s e-mail to Polymancer Studios, quoted below, and a compromise position which has the potential to resolve this matter favorably for both sides; though you do claim in the same sentence that you intend to “stand your ground.” This implies very strongly that you do not have the sincere intention to abide by a written agreement with Polymancer Studios. Is this the case? If so, then we must ask: What cause do we have even to consider the offer quoted below? If you have no intention of living up to it, then even considering it seems pointless.
I should further note that the use of the word “rape” to describe a business practice which is both legitimate and required under the law (i.e., protection of one’s registered trademarks) is obscene, egregious, and offensive; if you question this, I invite you to explain this usage to a real-world victim of actual sexual assault. You would be expected to take actions no different from ours had some hypothetical third party made use of the name “Jan Frank” or “Daverana” in publishing without your consent, and hardly would you be faulted for such.
It is our understanding that Mr. Willard has taken ill and that he may not be capable of corresponding with us in order to deal with this issue at any time in the near future. This is deeply regrettable. In the absence of any other representative of Daverana Enterprises, we direct our concerns to you, Ms. Frank. If you want to continue with the process of resolving this matter in the manner that Mr. Willard proposed, then you are directed to remove all blog posts and similar Internet actions about this subject post haste. In the case of Twitter, you are directed to take down the poll and to post a notice informing all who “follow” you on Twitter that you are in negotiations with Polymancer Studios, Inc. to resolve this matter amicably. You are further directed to cease and desist any and all such statements as well as any and all actions to elicit such from your correspondents on the Internet. It needs to be emphasized that this is not only for your protection, but also for that of your well-meaning fans, as it is established under Common Law that the mere repetition of a libel carries the same guilt as originating a libel.
Please note that these statements made by yourself, including the act of eliciting similar statements from your correspondents, constitutes libel and slander as such statements are made with malice and with the expressed intent of damaging the reputation of the company. This is legally actionable and we will take appropriate legal measures to protect the reputation of Polymancer Studios, Inc..
Do conduct yourself accordingly.
Polymancer Studios, Inc.
On 5/3/09 7:01 PM, Tim Willard wrote:
> Mr. Bernstein;
> Hello and good evening. We spoke on the phone about an agreement allowing us to use the words “polymancy” and “polymancer”, and I would also like to suggest we add “polymagus” to the list of words that both companies will strive to guard.
> I suggest, initially, that we proceed as follows:
> Daverana Enterprises
> * Does not contest the existence and strength of Polymancer Studio’s trademark of “Polymancer” and “Polymancy” as a brand name, product line, and line of goods.
> * Agrees not to use the words “polymancer”, “polymancy”, “polymagus” in the titles of books.
> * Agrees not to have the concept of “polymancy” be a central and solely defining point of character definition in the future works of fiction, all though it is allowed to be part of a character’s definition.
> * Defends and maintains the use of the word polymancy in previously released works of fiction, and future works of fiction as already defined in copyrighted material.
> * Agrees not to arbitrarily change the definition and usage of polymancy and polymancer in future works of fiction in such a way as to weaken or contest Polymancer Studio’s trademark.
> * Agrees not to allow the use of “polymancer”, “polymagus”, “polymancy” in any stories published by the Daverana Enterprises subsidiary “Flashing Swords Magazine” or any future magazine publications with the sole exception of fiction written by Ms. Janrae Frank that is set in the pre-existing setting that utilizes polymancy. In addition, any such short story or article shall not have “Polymancy”, “Polymagus”, “Polymancer” in the title or subtitle of the work, although it is permissable in the body text.
> Polymancer Studios
> * Maintains and defends their possession of the Trademark “Polymancer” and “Polymancy” in regards to brand name, product line, and line of goods.
> * Agrees to allow Daverana Enterprises to continue to use the words “polymancy”, “polymancer”, “Polymagus” in works of fiction providing that those concepts are not the sole defining characteristics of characters, although it is allowable to be one of several or many defining characteristics.
> * Agrees not to contest the existing usage and future usage of the words “polymancy”, “Polymagus”, or “Polymancer” by Daverana Enterprises (Specificially Ms. Frank) in works of fiction where previously copyrighted works of fiction have already established the usage of those terms within the fictional setting.
> * Agrees to allow Daverana Enterprises to use it as a minor character definition, providing the character has stronger definitions beyond the contested terms.
> * Agrees not to demand that previously existing works by Ms. Frank and Daverana Enterprises be removed from publication and pre-existing products be destroyed.
> * Agrees to allow Daverana Enterprises to maintain the “Polymancy”, “Polymancer”, and “Polymagus” entries of the Daverana Lexicon, providing that a footnote annotation be added that leads to a footnote stating “Not to be confused with the trademark Polymancer, which is a trademark of Polymancer Studios”
> Finally, both companies agree:
> * That Polymancer Studios holds sole Trademark to the word Polymancer.
> * Daverana Enterprises and Ms. Frank hold copyright usage in previously published works.
> * That both companies developed the words, concepts, and ideas seperately due to parellel research, and each was unaware of the others concepts, ideas, and definitions.
> * That both parties will seek to ensure that both parties copyrights and trademarks are defended by each other and do not seek to weaken one another’s copyrights and trademark through third parties through action or inaction.
> Please bear in mind this is an initial, non-legal language agreement that shall be used for the basis of negotiation on a final resolution that allows Polymancer Studios to retain all rights to their registered trademark and allows Daverana Enterprises to retain all rights to their copyrighted works.
> OK, shall we get down to negotiating the terms. Please, at this time, let all communication go through me in order to streamline this effort.
> Remember, guys, that none of us are the bad guys, this is just an example of codiscovery/codevelopment that happens now and then. Let’s work out something that makes everyone happy, and strengthens both companies rather than weakens us.
> –Tim Willard