5 March 2010
Master Sergeant Jeffrey Sarver is suing the producers of the academy-award-nominated film The Hurt Locker, claiming that the film is actually a biographical account of his exploits as a bomb-disposal expert in Iraq and that he deserves compensation. I have neither the legal expertise nor the factual knowledge to judge the merits of whether or not the film’s main character represents Sarver, but Sarver and his lawyer are also making a couple of linguistic claims. Sarver is also claiming to have coined the phrase hurt locker, and according to the Detroit News, his lawyer, Geoffrey Fieger, says he has “copyrighted” the phrase.
Alas, it appears as if these linguistic claims are utterly without merit.
Ben Zimmer quickly disposes the canard that Sarver coined the phrase hurt locker, which means a state of mental and/or physical pain. The term dates to the Vietnam war and is (probably) older than Sarver himself. An Associated Press story from 27 July 1967 says:
Then old Charlie opens up with those damned AK47 assault rifles, and, whammo, we were really in the hurt locker.
But the Detroit News also says the the lawyer Fieger also claims that Sarver “copyrighted” the term. This mistaken idea of copyright appears again and again in the press, almost never with any skepticism or correction. This is particularly shocking given that reporters are professional writers and anyone who makes a living as a writer should know the basics of copyright law—the Associated Press Style Manual even includes a section on “media law” that contains what reporters need to know about the subject. Now it’s not clear if Fieger actually said this or if the reporter is putting words in his mouth. (In the article, the statement is not enclosed in quotation marks.) If Fieger actually did say this, Sarver ought to start looking for another lawyer, because it would be clear that Fieger doesn’t know his basic copyright law. In any case, the reporter and editors are wrong to uncritically reproduce the statement.
First, in current law, copyright is not an active process which you have to take steps to secure. If you produce a work (a bit of writing, a performance, a piece of music, etc.), it is automatically copyrighted, no further action required. You don’t even have to label it as copyrighted. You can register a copyright (in the United States it is with the Library of Congress), but this does not change the status of copyright; it only improves your chances of winning a case if someone infringes on your copyright by offering evidence that you did indeed create the work in question. So to say he “copyrighted” a work is not incorrect, but it gives a false impression of the facts.
Second, you cannot copyright a word or phrase. Entire creative works are copyrighted, not individual words or phrases contained within it. (You can’t copyright a title, either.) So even if you do coin a word or phrase (which Sarver clearly did not), you cannot prevent other people from using that coinage.
Now you can trademark a word or phrase. But, to enforce a trademark and prevent others from using it, you have to have a business or product that uses the trademarked term as a name or as a feature (such as a t-shirt with the phrase written across the chest). And you can only prevent others from using the trademarked term in competing products—you cannot prevent general use of the term in day-to-day language or in business or products unrelated to your own. The purpose of trademarks is to reduce confusion between competing products through clear labeling and your enforcement of the trademark is similarly limited.
It’s about time that journalists took the time to learn the basic rules about how they can protect their creations and revenue streams (they don’t need to become intellectual property lawyers, but they do need to know the basics if they are going to call themselves “professionals"), and then write and edit their articles to accurately reflect reality. If Fieger said that Sarver had “copyrighted” the term, the reporter should have called him on it, questioning the lawyer’s veracity and competence. At the very least, the editor should have caught the error and deleted it from the article.
