The Brown-Forman Corporation, which owns Jack Daniel's whiskey, among many other liquor brands, is claiming local author Patrick Wensink has violated the company's trademark.
This could have been a classic David vs. Goliath story, in which corporate lawyers threaten to squash a struggling novelist. But in this case, it seems Goliath would rather take David out for a friendly drink.
Wensink got the letter from Brown-Forman's attorneys on July 12.
“I was on vacation, actually. I was drinking whiskey,” says Wensink. “But I’m a writer, so I don’t make any money, so I was actually drinking bottom-shelf whiskey.”
According to the legal team, the cover of Wensink’s new novel, “Broken Piano for President,” infringes on the Jack Daniel's trademark. Alcohol is a theme of the book, and the cover is an obvious design homage to the distinctive black and white label found on bottles of Old No. 7.
“I checked my email and laughed, because it seemed like such a crazy thing to happen. It didn’t scare me, but I was just like oh my god, that’s ridiculous,” he says.
The letter starts out fairly formal, but by the third paragraph, a human voice starts to poke through. See the entire letter here.
“It starts out very stern and legal and lawyerly, but as it keeps going they refer to me as their ‘Louisville neighbor,’ and I stopped worrying quite as much,” says Wensink. “They’re being very nice, and at the end they offered to pay for new cover art, which is unheard of in the publishing world as far as I know. I’m not an expert, but I can’t imagine any other company offering to pay for new cover art when you violate their trademark.”
Phil Lynch is the spokesman for Brown-Forman. He sent the book to the Jack Daniel’s brand team after hearing our story on Wensink’s Louisville book launch back in May. Lynch says Jack Daniel’s sees several thousand instances of trademark infringement a year, ranging from unlicensed t-shirts for sale to pop culture homages like this.
Lynch says there’s no one-size-fits-all response, but the company tries to do the right thing when talking with obvious fans.
“And we try to communicate in the same way Jack Daniel’s communicates with consumers. There’s a voice for Jack Daniel’s. Jack Daniel’s stands for independence and masculinity and individuality, and we try to respect the Jack Daniel’s voice and communicate, at least initially, when we first reach out to people in that Jack Daniel’s voice,” says Lynch.
“If people end up ignoring us, or don’t respond, or say to heck with you, we’re going to do whatever we want, the second and third letters will be a little bit more lawyer-ly and a little stronger in tone,” Lynch adds.
Like most authors, Wensink didn’t have direct input or control over the cover of his book. His publisher, Lazy Fascist Press, works with an artist, Matthew Revert, who designs most of the imprint’s jackets.
“I don’t have any say in it. It’s my publisher’s decision,” says Wensink.
Lazy Fascist Press editor Cameron Pierce decided the press would commission new artwork as soon as possible. He says a new cover should be in place by August.
“To be completely honest, the trademark thing never crossed our minds,” says Pierce. “We had no idea. I was very surprised and confused when Patrick called and broke the news.”
After getting the go-ahead from his press, Wensink published the letter on his blog, where it caught the eye of Cory Doctorow, a blogger for the influential website BoingBoing. It’s gone viral from there, appearing on some of the most high-profile publishing and lifestyle blogs, from Esquire to The Atlantic. They're calling it the nicest cease and desist letter ever.
“My personal website usually a good day is 20 hits. In the last 24 hours I’ve had 100,000 hits,” he says. “So I thought hey, something’s going on here.”
The response has been uniformly positive for Jack Daniel’s, with bloggers and readers praising their humane approach.
“Obviously we’re pleased people think we did the right thing, but we try to do the right thing anyway,” says Lynch.
Once the story broke, Wensink did what any self-respecting author would do—he checked his Amazon sales ranking. “Broken Piano for President,” an absurd satire about a man who’s more productive when drunk than sober, had broken into Amazon’s top 50 books. The new Oprah Book Club pick is number two. Before the letter went viral? His ranking was in the hundreds of thousands range.
“I assumed I would have had to have murdered somebody to get this kind of publicity, unintentionally. I’ll take it. I’m very pleased,” says Wensink.
“I’d like the world to be applauding me because I make Hemingway look stupid, but I’ll take trademark infringement,” he adds.
He’ll drink to that.