Admittedly, I have read Emily Bazelton on Slate and one of her discussions of a bullying case turned me off, so I know I would go in biased against her opinion. She may well written a book that is more complicated than the girl who committed suicide was a depressed girl who had sex before and DARED to flirt with a guy another socially acceptable girl considered hers and how dare the media and the school blame the highly privileged kids who went to her facebook and taunted her and called her a slut and a whore be criticized in the leas, especially because the bullying victim was IRISH. I do realize that the victim had to have some mental issues to commit suicide, but Bazelton's one series was a complete defense of why kids with money and social status shouldn't be called to account for concerted attacks on a vulnerable victim, accompanied by slut shaming
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The book doesn't get deeply into the testimony question (and the authors decided to ignore Smallville as far as I can tell anyway, which is understandable given just how much canon there is), but I agree that Superman's secret identity should be available to impeach any testimony he'd give against Lex!
FWIW, the Bazelon book doesn't come off that way to me. She describes teenagers slut-shaming, but doesn't do it herself, and she concludes that some of the things widely reported in the media didn't, as best as she can tell, happen in the way that they were reported. Her overall conclusion is that adult intervention has to happen much earlier and, in many ways, in less targeted fashion--focusing on the overall climate of a school.
As I said, I was responding to one particular set of articles on Slate, which may not be representative of her basic views or the book. I also have to admit, that the son of a friend committed suicide after intense bullying, so I am not coming at this issue from an unbiased view
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"superhero and supervillain are generic terms, not trademarks"
This is not true. "Super Hero" is a registered trademark in the US, number 825835, dating back to 1967. It is co-owned by DC and Marvel. "Super-Villains" is also a registered trademark, number 1324393, dating back to 1985, also co-owned by DC and Marvel.
"a trademark must have an owner, not two who don’t control each other’s behavior"
The issue is significantly more nuanced than that. To be sure, the US Patent & Trademark Office considers those marks to be co-owned by DC and Marvel, and there have been instances of co-owned trademarks before, such as "Swiss Army Knife", co-owned by Victorinox and Wenger. The exact status of the Superhero/Supervillain marks is complicated and has not been formally decided by a court. For an overview of the history of the mark and its enforcement, see Ross D. Petty, The "Amazing Adventures" of Superhero®, 100 The Trademark Reporter 729 (2010). In the face of such uncertainty, wouldn't you expect a couple of attorneys to err on the
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Yeah, there's a registration for each term; there's a registration for ONESIE for baby garments, too, and that's generic. They aren't valid registrations, and saying there's a registration doesn't make the marks nongeneric
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"They aren't valid registrations, and saying there's a registration doesn't make the marks nongeneric. "
The registrations have not been proven invalid, and the marks have not been proven generic. These are just claims that you are making. We are not interested in alleging that the marks are generic, and we certainly aren't interested in fighting a protracted legal battle against the producers of the content that made the book possible in the first place.
"you wrote a nonfiction book about superheroes and the law."
Yes, and we wanted to lay out why we believe our use of the term is fine in that context, just like we believe our use of the images is fine. Suffice to say that we (and our publisher) had our reasons for wanting to be clear on these points from the outset of the book's publication, particularly based on the publisher's history with the book The Physics of Superheroes and the receipt of certain communications from certain comic book publishers when the sale of the book rights was announced. I'm not sure why you
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As I said originally, I don't presume to know your negotiations, but I do think it's misleading to repeat these claims as if they were valid in your disclaimer; your statements have consequences not just for you but for other people who read this as if it were a statement of the law, and they have consequences for Marvel & DC's willingness to continue threatening people. You didn't say anything about nominative fair use or genericity to your readership, just to me; you repeated Marvel & DC's claims as if they were yours. I don't think you should have done that. I actually do expect authors who write about the law to take principled stands, or at least say that they haven't
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I think some of the non-Big Two publishers who also publish superhero comics actually used to take DC and Marvel's claim of having trademarked the terms "superhero" and "supervillain" somewhat seriously, to the point where other publishers tended to resort to alternate terms like "SPB" (short for "Super-Powered Being"--I think this was pretty much standard usage in some Image titles for a while around the time they first got started), "megahero," "ultrahero," "powers" (in Brian Michael Bendis' originally small-press "Powers" series, now ironically published by Marvel itself), "cape," and the ever-popular "metahuman" (although Marvel and DC also use the latter as a more general [non-trademarked] term for people with superhuman abilities, regardless of whether they attempt to use said abilities in public for either good or evil purposes). As a general rule, I've noticed a lot less pussyfooting around the allegedly trademarked terminology in most non-Marvel or DC comics since about the 1990's. However, there was an instance five or six
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There's no question that Marvel & DC bully when they think they can get away with it (see also the litigation against City of Heroes because it was possible for players to create characters that looked like the Hulk/Wolverine etc.). In America, there's very little deterrent to making legal threats, no matter how farfetched. I'm saying there's no legal basis for the trademark claim. In fact, an attempt to assert rights against a nonfiction book in particular would probably end in a fee award against Marvel/DC; as harriet_spy notes in her comment, it's not accidental that they haven't actually tried to litigate this. I also believe that having public sources seem to independently endorse that ownership claim is confusing and potentially harmful to the general audience who may think their own speech should be likewise suppressed.
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FWIW, the Bazelon book doesn't come off that way to me. She describes teenagers slut-shaming, but doesn't do it herself, and she concludes that some of the things widely reported in the media didn't, as best as she can tell, happen in the way that they were reported. Her overall conclusion is that adult intervention has to happen much earlier and, in many ways, in less targeted fashion--focusing on the overall climate of a school.
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This is not true. "Super Hero" is a registered trademark in the US, number 825835, dating back to 1967. It is co-owned by DC and Marvel. "Super-Villains" is also a registered trademark, number 1324393, dating back to 1985, also co-owned by DC and Marvel.
"a trademark must have an owner, not two who don’t control each other’s behavior"
The issue is significantly more nuanced than that. To be sure, the US Patent & Trademark Office considers those marks to be co-owned by DC and Marvel, and there have been instances of co-owned trademarks before, such as "Swiss Army Knife", co-owned by Victorinox and Wenger. The exact status of the Superhero/Supervillain marks is complicated and has not been formally decided by a court. For an overview of the history of the mark and its enforcement, see Ross D. Petty, The "Amazing Adventures" of Superhero®, 100 The Trademark Reporter 729 (2010). In the face of such uncertainty, wouldn't you expect a couple of attorneys to err on the ( ... )
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The registrations have not been proven invalid, and the marks have not been proven generic. These are just claims that you are making. We are not interested in alleging that the marks are generic, and we certainly aren't interested in fighting a protracted legal battle against the producers of the content that made the book possible in the first place.
"you wrote a nonfiction book about superheroes and the law."
Yes, and we wanted to lay out why we believe our use of the term is fine in that context, just like we believe our use of the images is fine. Suffice to say that we (and our publisher) had our reasons for wanting to be clear on these points from the outset of the book's publication, particularly based on the publisher's history with the book The Physics of Superheroes and the receipt of certain communications from certain comic book publishers when the sale of the book rights was announced. I'm not sure why you ( ... )
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