Oh, What a C*ck-up!

For those of you who haven’t yet caught up with the events associated with #cockygate, this is a great post on it here, and a Twitter thread here. 

Both sum up matters nicely, as well as bring up the implications and legal questions such an action raises.

Disclaimer: I am not a copyright lawyer and do not pretend to understand the ins and outs of the case. I am only presenting the information as I understand it.

The short version is this: Kindle All Star Faleena Hopkins (who also has written under the name Sabrina Lacey) filed trademark claims for the word ‘cocky’ as used in her series of stories surrounding a never-ending family known as the Cocker Brothers, as well as the specific font used in the titles of her books. The trademark now gives her the right to send cease and desist orders to every author with a book containing ‘cocky’ in the title. They are given the choice of changing titles or facing a potential lawsuit.

Author Jamila Jasper received a C&D email from Hopkins, which she then shared with social media.

 

Ms. Hopkins does not deny sending this email, and in fact responds to the sharing of it in various places on social media. It begs the question as to why Ms. Hopkins sent this email herself and not through her lawyer. The answer may lie in the fact many authors might choose to comply with the implied threat rather than face a lawsuit they cannot afford to defend. And it costs Ms. Hopkins zilch in lawyer’s fees to do so. This cover change is being held up as an example of one compliant author. And the recent title change of another book makes readers question if the author was forced to do so or chose to do so rather than be embroiled in the current debacle.

Ms. Hopkins states in a Facebook post that she is not out to take author’s livelihoods but to prevent her brand from being diluted and that changing a tile is no big deal to authors and costs them nothing. She also has claimed it is necessary to protect her readers from sadly buying the wrong books by mistake. (Um, you’ve noticed that Amazon has a very generous return policy on books, right?)

In her view, changing a title is no big deal. Unless it comes just before the romance convention season, when banners, swag, and advertising have already been ordered. Not if you count the cost of redoing entire pages if you’re a graphic artist, or paying for new covers. Re-recording audio files. Not to mention, losing readers who are looking for a title that no longer exists–but oh look, happen to head to the CockyTM author’s works.

Indie publishing is NOT cheap, by the way. It can cost somewhere between $1-2 K per story and there’s no guarantee you’ll see your ROI back.

Though not directly related, except as it goes to show the mindset behind the brand, Ms. Hopkins alleges her readers were also upset at seeing the cover models she’s used (stock industry images) appear on other covers. And that as a result, she was one of the first indie authors to photograph her own covers. (Spoiler: she’s not)

Then there is also this:

Ironically, the font she trademarked is copyrighted by the creator, so trademarking it may be in violation of copyright here, according to the creator’s Terms of Use.

Irony number two: Same author apologized to the romance community for titling a book “Cocky Solider” when the MC, a Marine, would never refer to himself as a solider. Marines are Marines, thank you very much. Even after being informed of this by an actual Marine, Ms. Hopkins apparently stuck by her original title, stating in her apology letter that it was not possible to change the title as books had already been pre-ordered and it would cost too much to make the switch at the last minute.

Irony number three: Same author allegedly has a MC whom she depicts as a member of the Atlanta Falcons football team. Which is trademarked. And the NFL has a history of strongly defending their trademarks.

Let’s set aside whether or not the TM commission should have granted the TM. It’s being contested. You can sign the petition here

Trademarking ‘cocky’ would be the equivalent of J.K. Rowling not trademarking “Harry Potter”, but just “Harry” and forbidding anyone to use the word Harry in the title of a story ever again. Harry Potter is a distinct entity created by Rowling. Harry in the generic, is not. This would be like E.L. James trademarking “Shades”.  Fifty Shades of Grey is trademarked. It’s a franchise. The word “Shades” is not. There is no special brand associated with that. Not even Ray Bans. The word has existed and been used long before FOSG made it a household name. To make the example truly ridiculous, it would be as if I attempted to TM ‘shifter’ and banned the use of the word in every paranormal romance title featuring the same.

Speaking of E.L. James, that author appears to have thrown some shade at Ms. Hopkins by suggesting her bank holiday read would be a popular book with “Cocky” in the title that pre-dates Ms. Hopkin’s series.

The implications of this maneuver are huge. Not just in the romance genre but across the board in the entertainment industry. Romance Twitter is being utterly inventive and vicious with their #byefaleena and #cockygate hashtags, with authors are retaliating by posting remade covers of their stories ALL renamed with “Cocky” in the title, and changing their Twitter handles to include “Cocky” in their name. There’s currently a request for stories for an anthology: The Cocky Cockers. They are soliciting romance stories from all genres, that must feature a cocker spaniel, around 5 K words and submitted by 5/31/18. I’m tempted. Sorely tempted.

But the underlying concern is real. The petition to cancel the trademark was started. The Romance Writer’s Association has asked any members (and now non-members too) who have been contacted by Ms. Hopkins to get in touch with them, and they are currently talking with an IP lawyer.

Imagine if someone decided to TM “Duke”. The impact on Regency historicals would be unreal. Or what about “Love”? Can you imagine having the gall to email Elizabeth Gilbert and tell her she has to rename Eat, Pray, Love?

Sadly, for the hundreds of people I see outraged, I am also seeing people nod and say what a great idea this is–and you can see them considering being the first to ‘snag’ a popular word to claim for their very own. I’m also hearing readers say they no longer search Amazon for romance titles because the system is so gamed. Some authors have been known to place their books with all-white characters in ‘diverse’ categories because it is easier to get a ‘bestseller’ label in a smaller niche. This practices goes along with page-stuffing in KU–something I didn’t understand until I read this description on one of the KU boards:

Page stuffing is the practice of putting additional, full-length novels in the back of another novel to inflate page count (for the purposes of increasing KU payout) – usually paired with some kind of inducement for readers to click to the end, past the content they likely own already (as it’s novels already on sale in the Kindle Store). This inducement often takes the form of an exclusive short story, or special offer.

Of course, this only works if the book is enrolled in KU. And it is definitely against Amazon and KDP’s TOS, so if you come across something like that, it’s not allowed. From my understanding, authors may tuck as many as three to four other books in the same series in a KU book in this manner. Supposedly, Amazon has fixed the ‘skipped pages’ thing that was making this profitable, but I’m hearing that’s not necessary true.

What IS allowed is a sneak-peek excerpt, or a first chapter of another work as a teaser. Most authors do this. It’s considered normal.

Why do I bring this up? Someone on Twitter explained that a successful KU author–even if the name was unknown to the general population–could be looking at grossing 20-50 K a month writing romances. A month. (Quite possibly spending 1-15 K in advertising to hit Kindle All Star status, but still…) Obviously, I’m going about this writing romance business all wrong.

It explains why someone might choose to go this route, even though they have earned the enmity of Romancelandia–and possibly destroyed their own writing career. To go “Full Faleena” has already become a catch-phrase on how to shoot a successful career in the foot.

Author Jenni M Rose on Twitter related what happened when she realized she had  named a book after a popular series and reached out to the author, Mari Carr. This resulted in #BeAMari becoming a hashtag. This is the classy way to deal with perceived competition.

 

I confess, I had to laugh when I saw this post. Someone has already taken a Chuck Tingle approach in response.

Right-o, then. The object lesson here? Be a Mari.

If you have issues with the ramifications of being allowed to TM a word to prevent it from being used in romance titles, I suggest you sign the petition to cancel the trademark as listed above. Don’t berate the author on social media. Don’t one-star her books. The author has every right to TM her series, especially, as it seems, she has hopes of making movies based on them. My problem stems from trademarking a word that has been used in titles long before Ms. Hopkins laid claim to it. The Cocker Brothers might be her brand, but I dispute that she should have the sole right to use ‘cocky’ in a book title.

Hopefully, the TM commission will see this as well, cancel the TM, and we can all move  on.

UPDATE: Author and retired lawyer, Kevin Kneupper, has filed a challenge to the ‘cocky’ trademark.

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