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In 1649, to St. George’s Hill—

I was walking home from the sushi joint when it hit me, the full import of the passage Heidi MacDonald had quoted:

Not only did Groth re-use the piece—which is his right—but he took the opportunity to make another childish remark about me on the cover (apparently… I am advised). That, and the fact that he has not used the trademark registration of my name on the cover, thus exploiting a trademarked entity for his sole financial gain, with no smallest recompense to the trademark holder, puts him once again in my gunsights.

The trademark registration of his name on the cover?

I mean, I’d been skimming the post, hadn’t been paying that much attention; the fallout of the Fleisher suit and the resulting Ellison-Groth spat was about when I first started reading the Comics Journal, so I felt that much loyalty, I guess. Groth flipped somebody off yet again. Ellison’s taking umbrage for another walk about the block. Yeah yeah, sure sure. Aw, man, Seth Fisher died? —I wasn’t paying that much attention, is the point. Which is why it wasn’t until after the St. Helens plate and the green-tea cheesecake and the walk to the bus stop that it hit me, what he’d said.

—he has not used the trademark registration of my name on the cover—

So I went looking, and sure enough, you see it at the bottom of this piece, or that:

Harlan Ellison is a registered trademark of The Kilimanjaro Corporation.

And then you look at the byline and oh my God, there it is:

by Harlan Ellison®

And it’s not that those damn marcæ registradæ claw at the eyeball, snagging your attention as you pass it over the seething river of text that rushes past these days: unlettered interruptions in the abecederial flow that break the trance of reading, like “second”{-rate} post/moderne party tricks.™ It’s not just that (to my aggrieved eye, at least) ® and ™ and ℠ are signs that irrevocably signify pitches and propaganda, corporate greeting cards, snake oil in search of stooges; that they smear this implication over everything they touch. (Suddenly, I see in my mind’s eye a wall of Harlan Ellison® action figures—with kung fu grip!) —These are but matters of mere æsthetics, and wiser folk than I throw up their hands and cry “De gustibus!” Who am I to say otherwise?

Nor is it that when it comes to matters of name and fame and selling the words you write, I find Ellison’s stated reasons for looping this particular albatross about his neck to be hopelessly fusty:

We live in ever-more-complex technological times; the shapes of “emerging problems” are only beginning to loom large in the fog. And as Pasteur said, “Chance favors the prepared mind.” So I am extrapolating what scams and snafus MAY manifest themselves, and have moved to circumvent them before I get snookered and learn that some electronic poltroon has cobbled up a new way to screw the creator out of his/her creative rights. (Having employed this m.o. in re copyright registration years ago, has provided me the status to sue in my case against AOL.)

Sure, you can hold on tighter, gear up as David for one more one last fight against Goliath, best two out of three, but life is too short for Pyrrhic victories and depositions. (Thinking of those Harlan Ellison® action figures reminds me of that Robin Williams bit about seeing a dumpster full of discarded Mork® dolls. What has been commodified can be taken away.) —But what do I know? My name means almost nothing, and my words have only ever brought in beer money. Easy enough for me to pretend I could care less.

No, what concerns me about that brand seared into the collective unconscious after his name, after anyone’s name, is what happens, what could happen, when that brand is suddenly injected with a dose of HR 683.

Now, it’s not Harlan Ellison I’m worried about. He would never, say, attempt to demonstrate that convention stories told out of school by a couple of famous japesters like Tycho and Gabe, in the arguably commercial context of bragging on their branded message boards, could constitute “dilution by tarnishment” of his famous mark. Nor do I think Ellison would seek to shut down free and open access to his Wikipedia entry, on the grounds that allowing just any slob in a smelly T-shirt to alter the public perception of his mark would dilute it through blurring. —But Ellison’s hardly the only person in the world who uses their name to conduct interstate commerce regulable by the federal government. Any slob in a smelly T-shirt who does likewise could slap a ™ or ℠ after their own name, or pony up a few hundred bucks and shoot for the circle-R. And whereas under the current law, the slob in a smelly T-shirt would have to prove that someone else in using their mark (registered or, less easily, otherwise) intended to—

—that they might seek injunctive relief (solely in order to protect the consumer from knock-off goods [or services] whose fake slob -in-a-smelly-T-shirt mark might be confused with real slob-in-a-smelly-T-shirt goods [or services]), well, now, or rather, soon, when (if?) the Senate passes its version of HR 683, and the two are reconciled, well, then the mark (itself already something of a good, or service, or at least a thing that can be blurred and tarnished; diluted) becomes moreso: no longer a method of protecting consumers, goods, and commerce, it too must be protected, cherished, zealously guarded. —And while some might take some little comfort in pointing out the fair use safe harbor the House carved out

—others might sadly shake their heads, remembering in what contempt fair usage is held these days, and point to the ADDITIONAL REMEDY that might be sought—

—and then it’s all scorched-earth he-said-she-said, as far as the eye can see. (And though Ellison himself would never push this particular button, what about when he’s no longer with us? When the executors and officers of the Kilimanjaro Corporation have a fiduciary duty to protect that mark and best realize its potential? They would have no choice but to zealously prevent its dilution with every means at their disposal. —Though they might best be advised to step carefully: Wikipedia®, after all, is itself a registered trademark, and it might well be found that the publication of diatribes against its very modes and methods of operation might well dilute the mark…)

O brave new world.

’Tis new to me? Perhaps. —It should therefore be made quite clear that I don’t care whether Ellison brands every iteration of his name in the public sphere (beyond the curmudgeonly æsthetic concerns noted above); that it wouldn’t matter a whit if I did. He is entitled under the law to protect his commerce and his consumers fans, and if I tease him, it’s only because the shock of seeing the brand after his name was sudden and unexpected.

But I do care that Congress is trying to fence off yet another acre of free speech; that they wish to empower this corporation or that to shut me up, or you, or him, because something we’ve said might somehow, somewhere divert a buck or two from their coffers. That they are trying to create another piece of property inside my mind and mouth and art that somehow isn’t mine, is someone else’s, must be rented, borrowed, carefully considered, stepped around. —Fuck that, says I, and you should, too.

Contact Sen. Arlen Specter, the head of the Senate’s Judiciary Committee, here. Public Citizen’s Litigation Group is defending Don Stewart in an anticipatory test case; you can support them here. And write your own Senators, once more, again, as well. Go! Go!

  1. Patrick Nielsen Hayden    Feb 5, 10:20 AM    #

    I’ve already phoned Specter’s office. But since Public Citizen wants to destroy my wife’s life, I’ll support them approximately when hell freezes over.


  2. Kip    Feb 6, 09:12 PM    #

    What Patrick means.

    Public Citizen is, indeed, the branch of Nader that took pemoline off the market with no recourse for those who actually needed it. I have no idea what the firewall is between the Litigation Group and whichever arm runs worstpills.org. So.

    Stewart’s case is important enough (aren’t they all?) that I would recommend visiting his online gallery, and inquiring (perhaps via email) as to the contact information for his defense fund.

    —Also, I totally flubbed my example of dilution by blurring, above. Never hire me as an attorney, since I’m not. I might could fix it later.


  3. Glenn    Feb 9, 02:45 PM    #

    One might argue that we should go further and horsewhip any actor who, in days of youthful folly, might have played characters named after Harlan Ellison(TM,SM,R,TLA,AFSCE)? Or maybe my memory is failing. (It also comes to mind, oddly, that I knew Heidi way back around then, too.


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