Sorry, Sgt. Sarver

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Master Sgt. Jeffrey Sarver has filed a lawsuit against the makers of the film The Hurt Locker, claiming that screenwriter Mark Boal based the film's central character on him after Boal was embedded in Sarver's bomb squad unit in Iraq. I can't speak to the overall merits of the case, but one claim rings particularly hollow. The Detroit News reports:

Sarver said the very title of the movie was a phrase he coined in Iraq, and that Boal asked its meaning after hearing him use it. Boal has since copyrighted the phrase, Fieger said.
Sarver explained today that the term is akin to Davy Jones Locker, where legend says drowned sailors are kept.
"It's just a horrible place you go when you mess up," Sarver said. "It's a mental state. A place that's full of pain and hurt."

Unfortunately for Sarver, (in the) hurt locker is military slang dating back to 1966, as a quick trip to Google News Archive readily shows. I give the full history of the expression in my latest Word Routes column on the Visual Thesaurus. Check it out.

[Update: For more on the supposed "copyright" of the phrase, see Dave Wilton's post on Wordorigins.org.]



33 Comments

  1. Dan Bloom said,

    March 5, 2010 @ 2:32 am

    Wow, this is excellent word maven gumshoe work, Ben. Very very good. I saw something about this on CNN today here in Taiwan, your story is going to go global very very soon. Bravo!

  2. Oskar said,

    March 5, 2010 @ 3:09 am

    Maybe someone with a little legal experience can enlighten me, but isn't the whole concept of "copyrighting a phrase" ridiculous? You copyright books, works of art, etc. If you want to protect a phrase don't you have use trademark protection? And if you want trademark protection, don't you need, you know, a trade? A business of some sort?

    I mean, yes, obviously his claim was ridiculous to begin with because of the prior coinage of the phrase, but the legal side of his argument seems equally dubious to me.

  3. Stephen Nicholson said,

    March 5, 2010 @ 3:29 am

    IIRC, you can't copyright titles. You can trademark them, however.

  4. Dan Bloom said,

    March 5, 2010 @ 3:57 am

    Ben, 4 added notes

    One thing: the Detroit News has a typo in the line that reads "They both striped out of a bomb suit….", I amsure the reporter at the DN meant to type in" stripped" but once again the spellchecker program, if he or his copyeditors even used it, did not catch the error since machines do not have brains, hehe.

    TWO: the same DN reporter writes "Mark Boal directly evolved the movie from a story he wrote for Playboy…" – Word Mavens, since when did evolve turn into a verb used this way? Species evolve, yes, and even movie scripts evolve, from first draft to final draft, but to speak of a screenwriter "evolving" his screenplay, is this kosher? Is this like "growing" a business?

    [(myl) FWIW, the OED has examples going back to 1597 of transitive evolve meaning "To draw out, extract, release", or "To unfold, unroll; to open out, expand; (of a thought, idea, etc.)", or "To extract (something implicit or potential); to derive or deduce (a conclusion, law, or principle); to develop (an idea, theory, or system)."]

    THREE: how on Earth or in William Safire's Heaven can a person copyright a phrase like "hurt locker" as the frivilous lawsuit claims screenwriter Boal did? Did anyone copyright "crash blossoms" or "atomic typo" or "snailpapers"? No. So how does Boal go around claiming to have copyright "hurt locker" as his coinage? Corporations can copyright corporate words as part of their ID or llogo, sure, from xerox to "just do it", but can a screenwriter copyright a phrase like" hurt locker" and get away with it in real life, or is this "claim" merely part of the lawsuit's drama to drum up newspaper headlines and confuse Word Maven columnists and bloggers? I smell a rat here. My bet is that Boal did not copyright the term "hurt locker", let's ask him, since notice, Ben, Boal never claimed he copyright the term, it was Sarver's lawyer who makes the claim for Boal.

    FOUR: itoculd be that the Vietnam era use of "hurt locker" (lowercase, both words) was meant to stand for a locker in a soldier's unit or a high school locker, that kind of locker, lowercase, and that in fact, Sarver did coin the term "the hurt locker" as a reference to Davy Jones' Locker, uppercase. Possible they are both right, the Vietnam era archives AND Sarver today?

  5. Morgan said,

    March 5, 2010 @ 4:27 am

    Well, we have no English Academy to okay new verbs, Dan Bloom, but at least "evolve" is a fairly frequently intransitivized one. (See what I did there?) Your complaint seems a tad disingenuous.

  6. Golias Bauknecht said,

    March 5, 2010 @ 5:07 am

    That Fieger quoted in the piece is Geoffrey Fieger, pretty notorious Michigan litigator. He defended Kevorkian and seems (judging by commercials) to do a bit of work in the area of "well-known possible side effect of medicine actually occurs" law, whatever the term of art might be for that.

    Whatever the sergeant's claim at intellectual property, a copyright certainly wouldn't hold up, although the mess and disorganization of the Patent and Trademark Office might let him get away with a trademark despite ample evidence of prior existence. A trademark would not necessarily preclude a movie from using it as the title, however (IANAL BTW).

  7. Rolig said,

    March 5, 2010 @ 6:44 am

    @Morgan: I expect you meant to say that "evolve" is frequently transitivized. This may be true (I'm not convinced, however), but it's still bad writing. I suspect the Detroit News has sacked most if not all of its copyeditors, and this is what they get. I wondered if "evolve a story" is professional jargon, but isn't the standard Hollywood locution "to develop an X into a Y"?

  8. Dan Bloom said,

    March 5, 2010 @ 7:56 am

    @Rolig: Well said. Even if my "complaint" (that was a COMPLAINT?) was a wee bit tad disingenuous…..whatever THAT means.

  9. Nick Lamb said,

    March 5, 2010 @ 8:08 am

    "Boal has since copyrighted the phrase, Fieger said."

    We have a few possibilities here, in decreasing order of likeliness.

    1. Boal has a trademark on the phrase "The Hurt Locker" to protect his motion picture. Fieger, a lawyer, knows this, but the journalist isn't clear on what a trademark is and says "copyright" thinking they are paraphrasing.
    2. Boal does not have a trademark. Fieger knows this, but hyperbole sells a story, and so when the journalist asks he says that it's copyrighted, knowing such nonsense won't see court.
    3. Neither Fieger nor the journalist care whether Boal has any rights involving the phrase, this part of the story is simply bullshit that sounds good.
    4. Boal has a trademark on the phrase, Fieger is a notorious litigator BUT doesn't know his law, he believes Boal has copyright protection. This is possible only if we believe Fieger is a movie lawyer, who doesn't spend hours reading dry legal texts but instead wins cases by some unorthodox last minute method that the judge permits for no apparent reason.
    5. The USPTO went even more insane since I last investigated and has begun actually accepting copyright registrations (registration is not legally required but still exists) for short phrases. Look out US politicians, you may have to pay a fee to use those clichés in your next speech.

  10. Faldone said,

    March 5, 2010 @ 9:00 am

    According to my 4 page per page OED the earliest transitive senses of evolve predate the intransitive senses by about 150 years. Most of them are not quite the meaning used in the Detroit News article and the ones that are close to it are usually passive. This is not in the same league as grow which lived happily as an intransitive verb for a thousand years from the 8th century to the 18th before it got transitivized. The present arguments about its transitivity seem to be solely centered on the nature of the things that can be its objects.

  11. fev said,

    March 5, 2010 @ 9:12 am

    Fieger has the local fishwraps very well trained; a press release from his office is pretty much a 15" story, no matter how absurd.

  12. Mark P said,

    March 5, 2010 @ 9:19 am

    It's possible Sgt. Sarver actually thinks he coined the phrase. I have come up with what I thought was a pretty clever original expression only to find that approximately one million people had already thought it up and had been using it for decades. In most cases, it was Shakespeare who originally appropriated it from a prehistoric folk expression.

  13. Steve Hartman Keiser said,

    March 5, 2010 @ 9:35 am

    "Hurt locker" has been part of sports slang for at least a couple decades, e.g., a tough workout can put you in the hurt locker.

  14. Ginger Yellow said,

    March 5, 2010 @ 9:50 am

    "IIRC, you can't copyright titles. You can trademark them, however."

    I've never really understood this. I mean, titles are creative works, no? As are new coinages. Why should a different standard apply? Is it just because pretty much every non-trademark abusing usage would fall under fair use?

  15. Ginger Yellow said,

    March 5, 2010 @ 9:50 am

    And what if I write a book whose title is the entire text?

  16. Leo Petr said,

    March 5, 2010 @ 10:24 am

    There was a kerfuffle on BoingBoing a few years back because they posted the entire text of a paragraph-long story by LeGuin. BoingBoing was under the impression that a paragraph is always ok, while LeGuin's lawyers had a pretty good idea that an entire work is never ok.

    Drama ensued, with LeGuin winning in the end.

  17. Richard Hershberger said,

    March 5, 2010 @ 10:43 am

    @ Rolig:

    "I expect you meant to say that "evolve" is frequently transitivized. This may be true (I'm not convinced, however), but it's still bad writing."

    How so? I can think of two possible rationales:
    (1) Verbs must strictly adhere to the categories of transitive and intransitive. Uses of verbs cannot extend from one category to the other.
    (2) Verbs can be extended from category to the other, but only under narrow circumstances, which do not apply in this instance.

    The first rationale seems widespread among language commentators of the lower sort, but does not stand up to even casual browsing through even a mediocre dictionary. So presumably your reasoning is either the second rationale, or something I haven't thought of. Either way, this cries out for expanded treatment. What unmet conditions are necessary for transitive 'evolve' to be good writing. Or in the alternative, what other rationale did you have in mind?

  18. Aelfric said,

    March 5, 2010 @ 11:01 am

    Ginger Yellow–What a wonderfully Borgesian concept!

  19. John Cowan said,

    March 5, 2010 @ 11:02 am

    There is a particularly apropos quotation (too long for the OED) of transitive evolve in the sense of 'unroll, unfold'; it's in the passive, so it does not appear who or what is doing the evolving, but what is evolved is plain enough:

    There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved.

    The source? Darwin, the last sentence of the first edition of The Origin of Species. It was a favorite of the late Stephen Jay Gould's; he named his first book of essays This View Of Life, and explains that Darwin did not and could not use the word evolution for his theory of descent with modification by natural selection, because the word had an entirely unrelated technical sense in his day. But in his non-technical peroration, he went ahead and used transitive evolve in its (then) ordinary vernacular sense 'unfold, unroll'.

  20. Rob P. said,

    March 5, 2010 @ 11:25 am

    Nick Lamb – as to your point 5, the USPTO would have to go even more insane than you suppose, first taking responsibility for copyright registration from the Copyright Office, which is part of the Library of Congress.

    Frankly, your point 3 sounds the most likely.

    Incidentally, I find two HURT LOCKER marks registered. One is owned by the Ontario Knife Co., for knives, filed in 2008 on an intent to use basis. The other is owned by a couple of guys and registered for music and various music products, clothing and concert production. They allege first use in commerce in 2003, but the application was only filed last year.

    None owned by Boal or relating to movies other than video including music for the music guys.

  21. Dan T. said,

    March 5, 2010 @ 11:40 am

    People routinely confuse the three types of intellectual property — copyrights, trademarks, and patents — mistakenly referring to one when they really mean another, and attributing to any of them characteristics that really belong to a different one.

    [(myl) This is true, though you'd think that a lawyer would be able to keep them straight. (Unless the quote attributed to Fieger was mangled by the reporter, which is always possible.)]

  22. Jim F said,

    March 5, 2010 @ 1:03 pm

    As a lawyer, I would have said that Nick Lamb's impressions were correct on the copyright/trademark confusion, except that he's probably too gracious to Fieger. Many lawyers (especially high profile ones) have no clue about actual law and believe their job is something akin to acting like the Unfrozen Caveman Lawyer from Saturday Night Live back in the late 80s. However, Rob P.'s research would seem to indicate that there's no registered trademark for Hurt Locker for movies. But lack of registration doesn't foreclose protection, and it's possible that Boal or the relevant movie studio has claimed trademark protection even without registering the mark.

  23. mollymooly said,

    March 5, 2010 @ 1:18 pm

    Dave Eggers had a short story called "There are some ______ he should ____ to himself"* with 0 words of text after the title. "Tristram Shandy" has a blank chapter.** I think several SF magazines have published similar title/stories.

    *For copyright legal reasons, I've taken the precaution of omitting several words.

    ** Since this is now public-domain, I can reproduce it in full:

  24. Jerry Friedman said,

    March 5, 2010 @ 5:32 pm

    @mollymooly: Thanks for the laugh!

    @Nick Lamb: Maybe I'm the only one who went down the garden path on "movie lawyer".

    This is possible only if we believe Fieger is a movie lawyer, who doesn't spend hours reading dry legal texts but instead wins cases by some unorthodox last minute method that the judge permits for no apparent reason.

    "But he is a lawyer handling a case about a movie," thought I.

  25. Nathan Myers said,

    March 5, 2010 @ 6:06 pm

    Wasn't there an SF contest for shortest story? I seem to recall a winner, "There are some things Man was not meant to know." Niven?

  26. Karen said,

    March 5, 2010 @ 9:36 pm

    Not as good as Hemingway's

    For sale: Baby shoes. Never worn.

  27. Danny BLoom said,

    March 5, 2010 @ 11:50 pm

    NYTimes had article by vet named Brian Turner today review of Hurt Locker, he says he wrote poem titled same in 2004, pubbed in his book in 2005 called HERE BULLET which contains the poem he wrote titled "HURT LOCKER". see 'HOME FIRES, the bomb within us " for full quote. — my guess is that a few people in this "news" story are lying through their proverbial teeth, and since when do teeth have proverbs in them? but a great chat above, thanks Ben. I now want to see this movie when it comes to Taiwan in 2015, whereas before i had dismissed it as just another war flick

  28. Michael D. said,

    March 8, 2010 @ 2:49 am

    ""Hurt locker" has been part of sports slang for at least a couple decades, e.g., a tough workout can put you in the hurt locker."

    EXACTLY. I recall seeing it used in the Canadian military in the late 1980s and I am very positive there was nothing "original" about it even then. This was pre-Internet.

  29. Liz Peña said,

    March 8, 2010 @ 10:46 am

    My husband remembers his father (now 82 and a veteran of the Korean and Vietnam wars) using the terms "hurt locker" and "world of hurt." This would have been in the 60s and 70s.

  30. Cecily said,

    March 8, 2010 @ 11:21 am

    The BBC has picked up the story, including some overlap with what it above: http://news.bbc.co.uk/1/hi/magazine/8555318.stm

  31. Andrew said,

    March 8, 2010 @ 8:25 pm

    Just to muddy the waters further … the Update to the original LL post above refers us to Dave Wilton's post on Wordorigins.org. Over there, Dave tells us:
    '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.
    [...]
    But the Detroit News also says the the lawyer Fieger also claims that Sarver “copyrighted” the term.'

    Dave Wilton then predicates his article on that misreading of to whom Fieger attributed the copyright claim, suggesting Sarver drop Fieger as his lawyer because he should have known such a claim was spurious.

    Without further context, it seems to me possible that Fieger was simply disparaging Boal for the copyright claim, not necessarily implying that he thought it was anything but misguided or spurious.

  32. Maureen said,

    March 12, 2010 @ 11:08 am

    Re: "a world of hurt", I think you'll find in Google Books that the phrase is considerably older than the Vietnam War! I had the vague idea that it was an "old church lady" thing to say, and sure enough….

    "And one man shall do a world of hurt, one Shebna or Amaziah…." 1854

    "The sparing of Fielding hath done a world of hurt." 1739.

    " 'Tis a world of hurt that comes to the church by impropriations…." (Some guy named Sibbs.)

    I'd be willing to agree that this particular sense, "in a world of hurt", probably evolved in Vietnam, but all the earlier 20th century fiction statements about people having "a world of hurt" in their eyes probably were the waystation.

  33. Maureen said,

    March 12, 2010 @ 11:58 am

    It's also interesting that nobody ever has "a world of good" in their eyes, or is "in a world of good", given that "does us a world of good" is the opposite of "does us a world of hurt/harm/mischief".

    Weirdly, "a world of hurt" seems like the oldest expression, as Sibbes apparently died in the early 1600's and was already using it in his work.

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