Tag Archives: trademark

Kipling’s Boat

Kipling's lily pond at Batemans

Amongst a variety of excursions this summer, we went to Bateman’s, the one-time Sussex home of Rudyard Kipling.  It is now owned by the National Trust who are trying to restore it as much as possible to the way it was in  Kipling’s time.  This includes a rectangular lily pond of about thirty feet wide and fifty feet long.  It is not, by any stretch of the imagination, a boating lake.  Despite this error of scale, Kipling kept a boat there for the amusement of his children.  This was a small paddle boat – the sort with a hand-cranked paddle on either side – with a capacity of one adult or a couple of children.  He named the boat RMS Queen Mary.  The National Trust recently built a copy of the boat.  Now, whilst Kipling was a private individual and could name his private boat whatever he chose, the National Trust is in the business of opening houses to the public; they needed to play by the public and commercial rules.  In order to name a small paddle boat on a lily pond, they had to apply for permission to Cunard, the owners of the RMS Queen Mary trademark.  Cunard refused permission.
Now, you may well think that this is ridiculous.  I would argue that Cunard were wrong to refuse the use of the name for this purpose.  Nevertheless, this illustrates the law – the National Trust could not use a trademarked name (in this context) without permission (they named the boat 534 for a good and logical reason that escapes me completely).  The same law applies to writers and publishers…Kipling's boat

Playwrights – Pushing the Boat Out

The rules that apply to playwrights are a mixture of copyright and trademark law.  Broadly this might be summed-up as “you can do anything with anyone else’s intellectual property provided that you have their permission”.
Ah, but there’s the rub.  You have to ask for permission, and that permission may well involve a permissions fee.  For plays, the permissions fee is rarely an economic proposition.  Okay, so what can we do without permission?  (This is my interpretation of the law; I have yet to be taken to court to demonstrate how wrong I am.)

  • You can specify the use of a trademarked product in your play.  If you think the character uses Heinz Tomato Ketchup, you can say so.  (Heinz may even be grateful for the product placement, unless you are using it as a murder weapon.)
  • You can talk about products or copyrighted works (or people).  If you think your character has an opinion about something or someone, you can allow the character to voice that opinion.
  • You can suggest the use of (copyrighted) songs, but then anyone producing your work needs to get permission (usually through a fee to a collection agency) to perform the songs
  • You can parody copyrighted works or trademarked items (or people), but it has to be a clear parody (involving exaggeration of characteristics)

Then what can’t we do?

  • You can’t use a trademarked (or copyrighted) character other than in parody.  In practice, this means that you can’t use a character in the context in which it was used in the original work.  For example
    • In any context involving dwarfs, Happy, Sleepy, Bashful et al are trademarks of the Walt Disney Corporation who have bigger lawyers than you do.
    • Having a time traveller called Dr Who infringes BBC copyright
    • Naming a wizard Harry Potter infringes J.K. Rowling’s copyright
  • You can’t use any character or storyline from a work whose author was alive within the last 70 years.  (That’s British law.  American copyright law is more complicated; start with the British law as a guideline, then check.)
  • You can’t quote passages of copyrighted works (including songs) without permission

Permissions and Derivative Rights

“Permission” covers using an extract from someone else’s work within your work.  So, for example, Jonathan Edgington got permission to use the song “Hope” by Mark Laurent in his play “Sleep Out”, and Peter Nuttall has obtained permission to use images of paintings by Alexander Millar in the context of a musical play (“Working Man”) inspired by Millar’s work.
A “Derivative” is a work in a new format or medium based on a previous work.  For example, Tony Best has, with the agreement of the author, created derivative plays from a couple of Antonia Barber’s children’s stories.  In that case, Antonia Barber is entitled to a derivative royalty for every copy and every performance of the play.
Whilst the publisher and rights agent may deal with the royalty consequences of permissions and derivative rights (Lazy Bee Scripts does this), the initial approach needs to come from the playwright to the creator of the original work.

The Boot on the Other Foot

Permissions to use extracts or create derivatives from published plays
Occasionally, Lazy Bee Scripts is approached by third parties for permissions and derivative rights.  This means that we negotiate terms, collect fees and pay a royalty to the author.  The most common approaches are

  • Use of an extract from a play in a book.  (These are generally text books for Drama, English and “English as a foreign language”.  We have also had one case where an extract from ABC December by Sherrill Cannon and Kerry Gallagher was used in a romantic novel by JoAnn Ross.)  In these cases, the author wants to illustrate something and has found a suitable play on the Lazy Bee Scripts web site.  They can then tell us exactly what they want to use, and can give us details of the finished work, including the print run.  We then sort out the contractual side.
  • Translation of a play into a foreign language.  This creates a derivative work and therefore requires permission.  (If you want to do this, start with an enquiry to the publisher or the author’s agent before you make the translation!)
  • Creation a motion picture from a script.  A motion picture is a derivative work and therefore requires permission.

There is no automatic right to use someone else’s copyrighted work.  There are often good reasons to want to do so, but in all cases, permission needs to be sought.