So, I’ve got a little narrative for you.
Back in 2006, a flurry of people emailed me to inform me that a restaurant in the West Village was opening up, bearing the name the little owl. Fair enough, I thought this was adorable. I emailed the owner and pointed out the cute connection and he was very nice, saying he’d known about my blog and also thought the coincidence was cute; he invited me to swing by and check it out and just let him know when I wanted a reservation. I’ve never taken him up on it, although I’ve heard the sliders are delicious. I’ve always been a little proud to walk by the place; it IS a cute name! Owls are awesome.
Then in 2007 I started getting another slew of emails because a drink had turned up on the menu at the restaurant bearing the same name as my blog: Le Petit Hiboux. Fair enough, I emailed him again (in the same email thread) and again we exchanged pleasantries over it, and again he mentioned it was a nice coincidence.
This story would basically be a non-starter if “le petit hiboux” was a direct translation in French of “the little owl”. It’s not actually; as a lot of you know, it’s (deliberately) grammatically incorrect. When I started this blog in mid-2002, I tried out le petit hibou (the correct spelling of one singular small owl) on a blog banner and it looked damn weird. Like caribou. I didn’t like it, so I decided to add the x, thus making it plural and incorrect (the correct way to pluralize owls would be “les hiboux”). I didn’t care; I just liked the way it looked and I figured I knew enough French to botch it if I felt like it. I also, of course, had no idea the thing would be around seven years later.
Over the course of those seven years, I added a Creative Commons license back in 2004 (attributive non-commercial share-alike) and started a flickr stream and a twitter stream using the same name. It is for me my website nom-de-plume, my online identity. Right? We all have those. Heck, Dooce(tm) is trademarked. And while my blog name, and blog identity, isn’t trademarked, it is under a CC that restricts use of its content for commercial purposes and requests attribution.
I’ve noticed that the drink is coming up all over the web. I’m fairly sure that drink names aren’t copyrightable, so frankly once the restaurant created it, others were free to use it and distribute the recipe (which the restaurant has graciously shared). So now, since this blog has become a little less active recently, this drink is starting to creep up the rankings on Google, which makes sense.
So the question becomes, when does an expression become my property? Was it in the moment of misspelling, when I decided that the phrase could use improvement and thus transformed the expression into my own? And even if it wasn’t a misspelled phrase, if I’d “owned” it, would it be mine anyway? And as owner, however tenuously, what can I do – or not do – with it?
Please understand: I’m not considering suing a restaurant for using my blog name as a drink. It’s understandable that the owner used it; it’s a drink with French ingredients, and he assumed (I can only guess he assumed, that is) that as I said in my email, “le petit hiboux” is the French translation of his restaurant’s name. I didn’t, in reviewing those emails, ever mention that the X was incorrect, a choice I’d made to change the translation, and presumably, the owner or bartender (whoever created and named the drink) didn’t type “the little owl” into a translation engine to check. And anyway half the time you get “chouettes”.
So my intention isn’t to sue because of course, suing is something you do when you feel that there has been a copyright infringement on your property (or, when you’re just a huge asshole). What I think is that it’s an interesting dilemma that encapsulates the Web,
the CC movement, and the purposes of copyright – something I’m spending a fair bit of time studying this semester, and something that tends to get more complicated the deeper you go into it. On the one hand, it’s
not like I lose any income if there’s a drink bearing the same name; on
the other hand, I specified “non-commercial” on my CC license. On the
one hand, it’s not like the word “coincidence” applies since there’s
clearly a communication between myself and the owner on this exact
subject, but on the other hand, what would I have him do – hand out a
credit line with every frosty delicious glass? Make a note on the menu?
Pay me freaking royalties? All these options sound ridiculous, much like so much of the ridiculousness inherent in traditional copyright and fair use disputes that I’ve railed against. So perhaps this is fair use – that murky, complex underbelly of intellectual property that no one likes to talk about.
See what I mean? I honestly have sat here for twenty minutes thinking about this – instead of writing my term paper – and can’t really see which way is right, and I’m not even sure what the goalposts are. So I think I’ll get back to my paper about Creative Commons. Anyone with any strong (respectful!) opinions or clarifying ideas should make good use of the comments box; I suspect there are as many (plus one) opinions about this as I have readers.
Interestingly, I found this on the web, discussing whether one can trademark a drink name:
“Now, the names of the drinks could be something you trademark. Trademarks can be names of products or services, logos, slogans, packaging and even sounds and smells. In essence, a trademark can be almost anything that is used to identify a particular product or service. Registering a trademark grants the owner exclusive rights to the mark within the specified industry.
Of course, it’s necessary to research the mark comprehensively prior to filing to ensure that there is no possibility of infringing upon another party.”
So does that mean I can trademark a drink called Xerox, since we’re in different industries, me and Xerox?
This doesn’t address the fair use/CC question but it does shed some light on whether cocktails’ names are even copyrightable.
Interesting!
Actually I have a slightly different dilemma relating to my blog name and web presence. When I set up my blog, Alien Spouse, nearly two years I googled the name and put it into every social networking thingy I could think of to triple check that I wouldn’t be standing on anyone’s toes, which I thought was only polite. It’s not a particularly unusual phrase, and I was really pleased to find only one My Space group, which was already fairly inactive, so I went ahead with it.
Like you I use my blog name on Flickr, on Twitter, as my e-mail address and when I leave comments on other blogs. Since I started Alien Spouse a couple of other blogs have begun using the phrase, but just as a sub-title, so fair enough I s’pose.
A couple of months ago I noticed that there was somebody using “Alienspouse” as a screen name on a forum, and that they were writing some really unsavoury things (Not totally disgusting, just unpleasantly phrased most often). I have no idea if I have any right to ask them to stop using the name. Still, it does bother me, purely because the person writing this stuff on the forum is totally anonymous, but it gets brought up with my web presence if you do a google search.
It seems a really silly thing to worry about, when I have less than 1000 hits a week. It just bothers me that anyone might think I was writing that stuff! Gah!
Jen,
It seems to me that if it’s a forum you’re both using, it’s totally legitimate to add posts after their posts clarifying that you, “Alien Spouse Jen”, aren’t the one writing that stuff.
If anything, it’d serve as a gentle reminder to the other user to perhaps adjust their name.