Episode 193 – LitRPG Trademark, Patreon Fees, and Estate Planning

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Question of the Week: If you created or popularized a term that later became a successful product or genre for multiple people, would you consider trademarking it? Why or why not

If you came up with a term that became popular, would you lawyer up and trademark it? Jim and Bryan start out by thanking their wonderful patrons: The Newbie’s Guide To Sell More Books With Less Marketing, The Secret Blush, and What Sells Books. They had some valuable tips to share this week including how best to communicate with Amazon in order to resolve author issues, thinking like artisans rather than manufacturers, how one urban fantasy author Shayne Silvers went from earning a few hundred a month to five-figures after taking some time to do research, and The Science Fiction and Fantasy Writers of America is looking for more SFWA members to participate in a new indie bundle. News items include how authors can revamp their book covers with trend predictions from 99Designs, Hoopla is expanding their catalogs for young kids and comic lovers, the importance of proper estate planning regarding author’s intellectual property, indies aren’t happy about Patreon’s new fee structure, and Aleron Kong has trademarked the term “LitRPG”, irking others in the genre. Question of the Week: If you created or popularized a term that later became a successful product or genre for multiple people, would you consider trademarking it? Why or why not?
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What You’ll Learn:
  • Why authors should think like Jeff Bezos when dealing with Amazon reps
  • Why authors need to think like artisans, not manufacturers
  • How one author used research to earn five figures a month
  • How sci-fi authors can submit their story to SWFA’s storybundle
  • What new cover design styles are expected to thrive in 2018
  • How Hoopla is expanding its young reader and comic book catalog
  • Why authors should plan their IP estates now and how to get started
  • Why creators are frustrated with Patreon’s new payment structure
  • How one author trademarked “LitRPG” and what it means for the genre
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  • The issue with Patreon thing is that I hear a lot of patrons want to support multiple creatives at the lower tier. so its not just getting hit with the extra fees for 1 or 2 but with 5-10 pledges with each having the fee added on. I’d say it would be better if you were only charged once all in one.

    • Right. The math the guys cited in this episode assumed one pledge. Most folks I know who support people on Patreon are supporting multiple creators and are paying $0.38 more per month for each pledge because of the new single transactions. I’m just relieved they’re willing to consider the input of and work with their community of users.

  • I think Patreon made a huge mistake by changing their fee structure and I wouldn’t be surprised if they backpedaled about it in the coming weeks. Would I trademark a genre name? No way. First, it costs money to trademark, then you have to defend that trademark at all times, which costs a ton in legal fees if it’s something popular which LitRPG was on its way to being. I bet the community turns around and calls it something else, and they should. This is a money-grabbing gambit if ever I saw one.

    • Lol. And I just got the email from Patreon that they are not rolling out their new fee structure. Saw that one coming. *blows on nails*

  • Here’s the video interview I did with Patreon founder Jack Conte in 2014. https://www.youtube.com/watch?v=UyVmhDaaijk

  • If I popularized a term, I’d be happy just to be cited as the originator of the term in the Wikipedia page. That would lend some serious cred to the work I create under that new genre. If it’s a product name (for example, The Roomba or The Lord of the Rings), then yes, absolutely, it needs to be not only trademarked, but thereafter defended (or else registering the trademark is worthless).

    And as I’m writing this, creators on Patreon are receiving emails that the decision regarding the new fees has been retracted and they’re going to approach making profit as a community discussion with creators and patrons. PR nightmare, but it’s good to see them admit when they’ve made a mistake.

    PS: I’m a designer by trade and I take exception to Jim’s blanket statement about how designers approach a project.

    • Don’t be offended. It’s just one stupid guy’s opinion, me.

      • Wasn’t offended, that PS was meant to be good-humored. I will provide emojis with comments in the future! 😉 Felt as though the “Give us a break” in today’s episode was aimed at my statement, which wasn’t as emotionally loaded as it appears to have been received.

        • Bryan

          No, no. Not aimed at your statement. There were many other statements that were grumpy, both in the comments, and on FB. Mostly about the LitRPG. Don’t worry, we’re cool :).

  • T.j. Weekes

    The biggest issue with the LitRPG trademark is that Kong absolutely did not create the term “LitRPG”, nor the genre. His books are popular, but no one considers him the father of LitRPG (or even just American LitRPG) other than himself.

    I’m not a lawyer, so I don’t know all the ins and outs of the different types of trademarks. It’s very worrisome that he might be able to take action against other authors writing in the already-established genre. Hopefully, he is true to his word and only wants to protect his domain name.

  • Paul Bellow

    Also, the Russians coined the term “LitRPG”…

    https://litrpgreads.com/what-is-litrpg

  • bwakul

    Jim, It was quite frustrating listening to your discussion of the LitRPG trademark as it was quite disinformed. Kong neither coined the term nor made it popular in the US. A number of Russian authors using the term LitRPG in the US were hugely popular years prior to Kong. He is not the Father of American LitRPG, other popular American authors like Scottie Futch also used the term prior to him. The is an undeserved power grab.

    • Bryan

      Thanks for listening! We actually mentioned that Russian authors used the term before him. One of the reasons we used “or popularized the term” in the question of the week was because he didn’t create the term. But we wanted to leave the question open for both instances. Have an awesome day!

  • Paul Bellow

    We’ve been discussing this at the LitRPG Forum – not started by Kong…

    https://litrpgforum.com/threads/stopping-the-litrpg-trademark.1667

  • Mediapig71

    I don’t think the name of a genre should be something that can be copyrighted… DC and Marvel have done this from time to time with the term “Superhero”. and in my opinion, it’s a ridiculous corporate violation of first amendment rights. Of course, any unique IP that gets created in aid genre (ie: the name of the fictional rpg) is original material that shiould be protected.

  • Author brandilyncollins.com has trademarked her tagline, “Seatbelt Suspense.”

    • bwakul

      Irrelevant to this debate. If she coined the term and nobody else held the TM in the category she was after, I doubt anyone else would nave an issue with her TM.

      • If a publisher (or Amazon) offered a category in the list called “Seatbelt Suspense,” she might find it quite relevant. If another author began using that as their tagline, she might find that relevant.

  • Matthew Staggs

    Not being a lawyer (though in my day job I do deal with attorneys every day), I don’t think it’s right to try to trademark a genre itself, nor would doing so really bring you any benefit. And I think that’s an important point to note: I can’t see the benefit, financial or otherwise for trying to trademark the name of a genre. Say for instance i wrote the first ever clown-erotica novel (and I’m sure if I looked, I could actually find it somewhere out there), trademarking the term “clown-erotica” would not prevent anyone else from writing and publishing clown-erotica, and I certainly wouldn’t expect a payoff from anyone trying to do so. They would just market it as physical comedian erotica. You can’t, or at least can’t successfully trademark a style of writing, but you can trademark a universe, which brings me to…

    Terms, on the other hand, I think are a different story, and easily enforceable. Try writing a story with anything referring to something owned by Disney (everything) and see how far you get. My wife is a giant Disney World goer, and travel agencies set up just for Disney trips can’t even use certain terms closely associated with Disney in their brands.

    So genres, no. Terms, yes.

  • QOTW: If I created the term, sure I’d consider trademarking it… before someone else came along and nicked it and called themselves the Father of the Dan is Awesome genre and trademarked it themselves. Regarding the “Father of litRPG”… The title really bugs me, because Ready Player One (by American Ernest Cline) was out four years before Aleron’s books ever were, and is arguably a much bigger book (10x the Amazon reviews certainly points that way). I don’t know if Ernest Cline refers to RPO as litRPG, but it definitely fulfils all the tropes of the genre. I heard people referring to RPO long before I ever heard about Aleron King. I suppose Spielberg will just have to make sure he calls Ready Player One a science fiction movie now and ignores the litRPG side.

    What’s interesting though, is I’m pretty sure Aleron has shot the genre in the foot in terms of keeping it growing. The fact that Spielberg is directing a litRPG movie I think could have given the genre some life, but now the term is trademarked Amazon won’t consider listing it as a genre. Which if enough books and traffic continued for it, it could have. Just like Steampunk got its own genre after time, and Military Fantasy, and other sub-genres like that. So I doubt there’ll ever be an official listing for the genre now.

  • Snooze And You Lose Your Trademark. Sorry no Mister Nice Guy sharing with others, someday he will have to prove in court that he is the true owner of it and willing to license Its use and defend it. The More People Who Use The Term The Harder It Is To Defend Your Claim To It, Ask Kleenix?

  • Dave Core

    Trump tried to trademark “You’re fired.” Paris Hilton did trademark, “That’s hot.” Larry the cable guy (I believe) owns the rights to “Git ‘er done.” Personally I think it’s ludicrous that the patent office allows people to trademark phrases unless, that is, they could prove that others are using their likeness or font or idiom in some way to associate them with the phrase and to thus profit from the phrase. So if I created and named a genre or any other common phrase, I would not feel it was my right to own the phrase. However I should be able to make sure others are not using my reputation to sell their product.

    That said, isn’t Tron technically LitRPG? How old was Kong when that came out?

    • Gregg Roe

      Tron is LitRPG. It’s also been a common trope in anime for some time, and continues to be popular.

    • Benjamin Douglas

      The big Ready Player One film (Spielberg) coming out in 2018 is also LitRPG… but I think this goes back a big to Jim & Bryan’s clarification that this is a trademark of the term, not the genre. So long as Tron and RPO’s IPs do not use the term “LitRPG,” then they have no issue, in spite of the fact that both IPs are *obviously* LitRPG.

  • As the creator, yes, I would register for the trademark. Intellectual property, brand ownership & protection, and content are going to be more and more important with the evolution of AI and computer created works. I think we’re going to have to do more work and be more diligent to stand out in the future. It’s a noisy place out there. If you can claim your spot through trademark or copyright, then do it.

    As for the LitRPG – I’ll accept the man’s statement that he was doing it to protect it, but as someone who didn’t really create it, I don’t think he should have trademarked it.

  • Gregg Roe

    Patreon has now admitted that they made a mistake, but the damage is already done. Many creators have lost large numbers of patrons, particularly those who depend on large numbers of small donations. I’m disappointed that Jim and Brian don’t understand just how colossally stupid this act was on the part of Patreon. It’s clear that they don’t understand their own business. More importantly, they have lost the trust of both their creators and patrons.

  • If I coined a term would I trademark it? Yes, probably. I’m not an IP lawyer (although I read a lot of IP blogs for the day job). Given that a lot of people use the term ‘LitRPG’ and the average person wouldn’t think of Aleron Kong when they hear the term, it’s probably not enforceable. So, the people saying that authors who should carry on using it, probably have a point.

  • Benjamin Douglas

    Bit of a shock to the system to see Patreon change mid-stream. Obviously makes a lot of users happy, and good publicity for them (they listen to us!), but I hope they can continue to make their model viable, having basically agreed to continue to absorb those pesky transaction fees. Ouch.

    RE: LitRPG: this was quite disheartening to me, a new indie who started in scifi and who has been eyeing LitRPG as a possible avenue in 2018 (in conjunction with the Spielberg Ready Player One). A few choice adjectives come to mind to describe the trademark… heartless, selfish, greedy… but from a strictly business perspective, it does make sense. Even if he didn’t coin the term (which most say he didn’t), if he can get the trademark to hold in court, then he’s set himself up for life. And if the most he gets out of it is a lot of nasty attention, well, you know what they say: the only bad press is none.

  • Kirsten Oliphant

    The only phrase I’d ever want to trademark is “That’s so fetch.” But fetch is never going to happen.

    In all seriousness though, I don’t like this. I feel like the trademark should extend to something that is created SOLELY by a person, like a business name. Not random phrases they say or a term for a genre that you popularized…but didn’t coin. Come on.

  • I have to ask how valuable the term LitRPG would remain if other writers chose to stop identifying with it. Did this one individual really create the movement or does it’s success have at least as much to do with the growing number of people who are putting their works into that category? Kind of a chicken or egg type of question.

    The Patreon issue had me conflicted. I could see how the change could affect a lot of peoples wallets, but in a vein similar to Jim’s I would have expected real supporters to give careful thought to their choices before pulling the cord. Too many seemed to be jumping ship without any consideration for what it would do to the people they had pledged support to.

  • Randy Green

    Concerning the portion of the program about estate planning for authors…
    One of the consistent themes of the SMBS programs has been to conduct yourself like your writing is a business. If you go to a bank for a business loan, the bank is qoing to want to see your business plan, including an “exit strategy”, As a writer, you need to plan in advance what you want done with your intellectual property after you check out – your personal “exit strategy”.

    And don’t kid yourself that your book which only sold 25 copies the first year isn’t worth the trouble. You don’t have to look very hard to find examples of authors whose work wasn’t popular during their lifetime but who became quite successful posthumously.

  • Crissy Moss

    If I came up with a successful thing (like a widget) I might patent it. If I came up with a world, like Harry Potters world, or Pern, then I’d want to protect my intellectual rights to that world. In fact I have several worlds of my own that I don’t necessarily want anyone writing in.

    However… you shouldn’t be able to trademark a single word, or a genre. Fallout is trademarked, and every gamer knows what Fallout is. But when you have a trademark you have to protect it or you risk loosing it. That is part of the provisioning of trademark. So when someone else names their little phone game “Fallout Fortress” and it h as nothing to do with Fallout, it doesn’t matter. Bethesda HAS to protect their trademark. And they did. The game Fallout Fortress had to be renamed, not because they would have lost a fight in court but because it would have taken too much money to fight back and in the end it wasn’t worth it.

    Then you have the Fine Bros on Youtube that tried to trademark the word “React”. The whole youtube ecosphere rose up against them and said no, that’s not happening, and if you try we will drive your channel into the ground. The fallout from that escapade cost them a lot of respect in the community and they are still tryng to get back to where they once were.

    Then you have Hugh Howey who wrote a book, and let other people write in that world, which made him even more famous.

    Honestly, I think I’d rather go with Hugh Howey’s take on things. Sharing seems to work better than stiffing innovation. If someone else can write a better story in your world maybe you should partner with them, or come up with better stories.

    • Crissy Moss

      Also to consider, LitRPG is more like a subgenre of sci-fi since it often deals with VR that isn’t possible in our current environment. Ready Player One, and Killobyte by Piers Anthony are some of the ones that come to mind that made this genre what it is today. I never heard of that guy you talked about until today, but Andy Wier is EVERYWHERE. If anyone should be able to claim it it’s him.

  • Abraham Benguigui

    It deffinitly depends on how exclusive or not the term is. If I’m 100% certain I created it then sure. But one thing is to create a term and another is to make the term popular. I would most likely claim the term if it applied to my book or trilogy or universe. I doubt I would ever self proclaim my self as the father of something, specially a term or a genre others use in my community. Authors earne that tittle with hard work and a strong large fan base.

  • Daniel Martone

    No, unless it was actually part of my book’s world that I had created. If the term was already out there, I would not try trademarking it because not only would that alienate readers and authors who might already be using the term, but it would require a lot of work to maintain / enforce the trademark. Basically, I wouldn’t want to be the jerk to claim I was king of LitRPG, even if someone else had given me the nickname.

  • Laura Martone

    Despite the fact that my oldest brother-in-law is a lawyer, and I love him dearly, I’m not particularly fond of lawsuits – and not likely to ever trademark a popular term, should I ever have the spark of genius to create one. Frankly, I think it’s shameful for Aleron Kong to have claimed LitPRG, especially when he wasn’t even the first to write in this relatively nascent genre. How is that any different from some numskull trying to trademark “paranormal shifter romance” or some other niche subgenre? It’s selfish, ridiculous, and a waste of everyone’s time! Of course, this QOTW reminds me of the 20Books Vegas conference and how, while mentioning her prequel novella in a sci-fi panel, Lindsay Buroker accidentally called it a “prequella” – which some of my closest indie pals and I love so much, we’ve started using it on a regular basis. So, here’s hoping Lindsay doesn’t suddenly decide to trademark that one ’cause I’d be super-bummed!

  • Spider McGee

    I appreciate the Happy Books review, but I doubt I’ll redeem it. It may be a seasonal depression thing, but this is always a bad time of year for me — and I’ve been experiencing a crisis of confidence of late. Besides Christmas, I’m celebrating the 29th anniversary of my 21st birthday on the 26th, and I don’t like how the numbers keep adding up. I have about 25 stories in some stage of (in)completion, and I have no idea how to move forward. Please, feel free to re-gift the free review to another lucky recipient — I have no idea when/if I’m going to finish anything new.

    • Laura Martone

      Oh, Spider, I’m sorry to hear that. I understand how tough birthdays can be, especially when they fall at the end of the year (mine was recent, too)… but if it’s any consolation, Daniel and I have about 25 stories in varying stages of completion, too. So, you’re not alone, my friend.

    • Randy Green

      I read your message with some sadness even though we have never met. Serious depression in winter and while immersed in the American season madness we call Christmas is heavy duty. I think many writers can relate – to the depression and to the loss of writing momentum. Maybe we were drawn to writing, in part, by the ability to express ourself somewhat indirectly via the written word.

      About the birthday thing, don’t worry about it. In a few months, you will be used to the new number. I recently had a birthday also. I’ve never been this old before. Not sure how I am supposed to feel.

      Hope that the support expressed on this comments section will help you feel better.

    • Bryan

      Hey Spider, you can absolutely use it for one of your existing books too. Doesn’t have to be a new one. I feel you on the incomplete tasks, brother. We’ll make it through.

  • It’s a tricky thing with trademarking a popular (aka widely-used term for a common good). Being no lawyer and not providing legal advise, I want to point out that the product Aspirin became so popular that the term was used by the population for headache medication in general. With that, the original trademark protection was not valid anymore in 1918 (1921 confirmed by a court). Hence, I would not try to trademark it as with increased popularity and generalization (stories written in different universes) it might lose its effect.

  • Regarding the change in Patreon’s calculation: We are missing a piece of information that is crucial and that is whether the creators actually receive more money. I was not aware of the fee structure (didn’t read the fine print it seems) and it would be interesting to see if you receive more of the amount I’m pledging. In general, I am relaxed. As Jim says: if we like the content we will continue to pledge. However, it might be worth analyzing if a change in the pledge structure could help (depending if they charge the 35 cent per pledge or per debit), e.g. with a monthly fee of $4.

  • About the LitRPG thing. He could be legit trying to protect it, but then why not put it in a trust or something like that?

    What he may or may not understand (and as others here have said) is that once you have a trademark, you must protect it, even if you don’t really care if others use it. If you don’t, you can lose it. Who knows if Kleenex benefits or loses out because their trademark is used for tissue in general. They might not care, or they may LOVE that it’s used like that, but they have to at least go the motions of protecting it, or it’s considered abandoned. That’s likely what happened to “asprin.”

    So, if he’s forced to protect it or lose it, does he have an excuse to be a jerk about it? “It’s out of my hands. Sorry… Now stop using it or else!”

  • To those who say trademarking something you use or say is being a jerk, that’s not fair. If Larry the Cable Guy didn’t trademark his phrase, someone else might have, then he would have been forced to stop using it or pay a licensing fee. Even if he won, it’s a lot of work to defend your use or unhook someone else’s trademark.

    My wife and I had to stop using our previous brand name (which we thought was pretty safe, as it was just a few words, and more concept than a name). Someone trademarked a name similar to our brand name, and started sending lawyers out to tell us to stop it. If we’d trademarked our name, we could have just pointed to that and they’d have left us alone.

    They even tried to make us change our book title because their pre-order had a similar title to our already published and in-stores book. They let that go, though, and changed their title.

    Going back to my other comment (about the LitRPG trademark), they might not really have cared, but if you’re forced to defend or lose your trademark, you have to at least make a show of it or risk losing it entirely.