When Canadian author James Bow and his U.S. publisher decided the cover of his newest novel, “The Night Girl,” needed to highlight its Toronto setting with an image of one of the city’s most iconic structures, they didn’t expect to need a lawyer.

But that’s the situation in which they found themselves, when the fantasy novel about underemployed trolls and goblins hit bookstores Sept. 10, and a Canada Lands Company representative emailed Bow to tell him the image of the CN Tower on the book’s cover was a violation of trademark.

“It came as a surprise to me,” said Bow in an interview. “Nobody initially assumed that a building itself could be trademarked.”

The publisher, Reuts Publications, had cleared the rights to the image with the photographer who created it through a stock photo website — but the CN Tower’s manager of marketing and communications, Patrick Leavey, wrote claiming that any image of the tower was protected as a trademark of the CN Tower and Canada Lands Company Ltd. (CLCL), which manages the asset as a Crown corporation.

“We request that the use of the CN Tower image be discontinued immediately along with any other instances where it might be in use or appear,” wrote Leavey in the Sept. 10 email.

Leavey noted that the CN Tower is “protected by trademark, and as you are undoubtedly aware, the CN Tower is an iconic and famous landmark in the City of Toronto.”

Bow and Reuts Publications are pushing back, initially fearful that the demand would require them to pulp the entire press run of the book. In a subsequent exchange, Leavey suggested that the publisher might simply remove the image on subsequent press runs, but Bow said that wasn’t good enough.

“They made that offer ... after I expressed that they were being unreasonable ... but I still felt I needed to stand my ground on this one,” he said. “I don’t think anyone using my book thinks the CN Tower is haunted by trolls and goblins and not go. There’s no reason to think this is a guidebook or the CN Tower’s guidebook. Based on their reaction, I knew this was overreach.”

Bow found a lawyer — with the support of science-fiction writer and copyright activist Cory Doctorow, who learned about the situation through an email listserver discussion among Canadian speculative-fiction writers.

On Oct. 2, Bow’s lawyer Ren Bucholz wrote to Leavey, asking that the matter be dropped.

“The purpose of trademark law is to prevent confusion in the marketplace for specific goods and services, and to stop bad actors from ‘passing off’ counterfeit goods as the genuine article,” Bucholz wrote. “We understand that CLCL is the Crown corporation that owns the CN Tower, and that it is charged with stewarding and monetizing real estate assets formerly held by the federal government. It seems unlikely that CLCL is active in the business of publishing novels, let alone fantasy novels featuring a strong female protagonist who helps trolls and goblins succeed in the human world through her work at an employment agency.”

In an interview conducted over email, Doctorow said enforcing trademark on landmark buildings would have broad implications for “all kinds of expression, from photography (imagine if you had to clear a separate licence for every single building in the Toronto skyline before you could publish a photo taken from a Toronto Island ferry) to painting and filmmaking, to say nothing of news gathering and commercial design and all the other disciplines and trades that routinely reproduce the likenesses of landmark buildings.”

Marcelo Gomez Wiuckstern, CLCL’s Vice President of Corporate Communications, said in a written statement that the organization is continuing to pursue a resolution with Bow.

Loading... Loading... Loading... Loading... Loading... Loading...

“Canada Lands Company is the owner of the CN Tower and as you can understand, we must protect, at all times, the image of this national Canadian icon with a wonderful reputation worldwide against improper usage,” he wrote. “We are not implying this is the case with Mr. Bow, that is why we are in active conversation with him.”

Update: Oct. 4, 2019 — This article has been updated from a previous version, to include a response from Canada Lands Company.