Copyrighting the Ogopogo: The © Story Behind the News Story

The headline in the local paper grabbed my attention. “City of Vernon transfers copyright to legendary Ogopogo to B.C. Indigenous nations”. It went on to say that “The legal rights to the legendary creature in a British Columbia lake have been transferred to an alliance of Indigenous nations who say the Ogopogo has always been part of their spiritual teachings.” Well, that’s probably as it should be, and is fully consistent with the spirit of reconciliation with First Nations that is epitomized by the establishment of a new public holiday in Canada, Reconciliation Day. (September 30). But hang on a minute. How could the City of Vernon (a community of about 40,000 located near the north end of Okanagan Lake) own the rights to a mythical lake monster? I mean, you can’t copyright the Ogopogo any more than you can copyright the Loch Ness Monster, the Sasquatch or the Yeti, the unicorn or any one of a host of other imaginary creatures. You can’t copyright an idea, only the expression of an idea.

No-one would be surprised to learn that imaginary creatures like Godzilla, The Hulk and Superman are protected by copyright and trademark registrations, since they were conjured out of thin air by their creators. (Japanese film producer Tomoyuki Tanaka in the case of Godzilla, writer Stan Lee and artist Jack Kirby in the Hulk’s case and Jerry Siegel and artist Joe Shuster for Superman). They didn’t “exist” (in peoples’ minds) until their creators put them in concrete form, through films, artwork, comic books etc. The copyright on the creation was then sold and commercialized.  But what about other imaginary or mythical creatures such as sea monsters, denizens of deep lakes and various bizarre and unproven forms of life otherwise known as cryptids, such as the Ogopogo, passed on by legend and oral tradition? Surely it would be impossible to copyright them—and by extension have the right to license the concept of the creature and in turn prevent others from using it without authorization.

While I could understand that Vernon wanted to give whatever IP (intellectual property) rights that it held in the Ogopogo to the Okanagan Nation Alliance–representing indigenous groups in the Okanagan region–as a gesture of reconciliation, the copyright nerd in me came out. I was itching to find out exactly what it was that the City had transferred. Perhaps it wasn’t a copyright after all, but a trademark registration that was transferred? In a CBC report published back in March when the story first broke, there is reference to transfer of both copyright–in the text–and trademark–in an embedded interview with Okanagan Indian Band Chief Byron Louis. Maybe the journalist mixed up the two, but a trademark registration on the Ogopogo appeared to be a logical conclusion. I began my search, and eventually, with the help of staff at the City of Vernon, Jadon Dick of the Okanagan Publishing House, and the Canadian Intellectual Property Office, I think I have solved the mystery. Read on.

The press reports covering the story reported that the copyright had originally been registered in 1953 by Arthur “Gil” Seabrook, a local broadcaster, as a promotion. I suspect he wanted to “one-up” the neighbouring City of Kelowna, located 50 kilometres to the south of Vernon, and lay claim in some way to the lake creature. Kelowna’s waterfront has, since 1960, sported a large concrete sculpture of the Ogopogo, and is a popular tourist attraction. Clearly Kelowna was not deterred by Seabrook’s supposed copyright on the mythical monster. It was reported that in 1956 Seabrook assigned his rights to the City of Vernon, substantiating the supposition that this was all about civic rivalry. Seabrook lived a long life and passed away in 2010 at the age of 97. His obituary, published in the Vernon News, says that;

“At one point, as a marketing / promotion effort, he personally obtained the registered trade-mark for the word “Ogopogo” and an artistic rendering of the famed lake monster. This, much to the chagrin of Kelowna and other Okanagan cities. Eventually the rights to use “Ogopogo” were offered to the City of Vernon … where they basically remained dormant”. Ah, the smoking gun (or so I thought).

I decided to search the Canadian Trademark Database for information as to what was registered under Ogopogo. I found 17 entries for use of various forms of Ogopogo related to a range of product categories, from books to wine to chocolates, to suntan products, clothing, and soft drinks. There are also many other businesses in the region that use the name Ogopogo without registering it, e.g. Ogopogo Giftland, Ogopogo Lawn Sprinklers, the Ogopogo Motel, and so on.  Registered trademarks must be associated with a specific product category and must be renewed every ten years. Many of the registered marks had lapsed due to non-renewal, and none were in the name of the City of Vernon. I thought it unlikely that Vernon would have renewed their trademark registration—at a cost to the taxpayer of around $500 net of legal fees—every ten years, so perhaps it wasn’t a trademark registration after all. So, what was it? It was time to search the Copyright Database maintained by the Canadian Intellectual Property Office (CIPO).

I found 18 listings for registered copyrighted works related to the Ogopogo. They included books, posters, artwork, videos (in some cases, supposedly of the creature itself) and dramatic works. However, it is not compulsory to register a copyright. The mere act of creation and fixation (embodiment in concrete form, such as publication, a photograph, a painting etc.) is sufficient, so I have no doubt that there are many more works out there based on the Ogopogo that are subject to copyright protection that have not been registered. And then there is the fact that the online database only goes back to 1991. What about Gil Seabrook’s registration? What did he register? I asked the CIPO if they could confirm what was registered.

They responded, but not very helpfully.

“The Copyright Office does not conduct searches for clients. The Canadian Copyrights database will allow you to search all of the Canadian copyrights registered from October 1991 to present day, free of charge…Registrations prior to October 1, 1991 and dating back to 1841 cannot be searched online. They are stored in the public search room of the CIPO Client Service Centre. You may wish to visit the Client Service Centre or hire a freelance searcher to search on your behalf…You can also hire a registered trade-mark agent to conduct a search on your behalf. Open Monday to Friday (except statutory holidays) from 9:00 a.m. to 4:00 p.m. (Eastern Time) on appointment only.

It should also be noted that copies of the works themselves are not part of the records kept at the CIPO. The Copyright Register only contains information such as the names of the authors and owners, the titles and categories of works, registration dates and grants of interest.”

That’s great if you are a resident of Ottawa. Even then, if you found the 1953 registration, it still wouldn’t tell you what was registered.

Now remember that Gil Seabrook’s obituary had said that after he had transferred the “trademark” on Ogopogo to the City of Vernon, it had remained dormant. That is mostly, but not entirely, true, and this is why we are discussing this issue today. Back in 1984, a local author, Don Levers, was writing a children’s book called “Ogopogo-The Misunderstood Lake Monster”. It was self-published and sold over 25,000 copies. It seems that Mr. Levers had heard stories about the City of Vernon owning the copyright on Ogopogo, so he played safe and asked the City’s permission to publish his book. It was freely granted, subject to acknowledgement in the book. Fast forward to March, 2021 and Mr. Levers has decided to publish a sequel. Once again he, along with his publisher, Okanagan Publishing, approached Council for permission to use the word. Press reports stated he required Council’s permission “because the city has the copyright to the word Ogopogo”. Once again, Council agreed, provided that Levers acknowledged the City in a prominent and suitable location. He agreed to do so, but that is when the reconciliation issue came to the fore.

Vernon’s heretofore long-forgotten and dormant copyright ownership suddenly was put in the spotlight. Questions were raised about why the City held title to the name Ogopogo, when it was based on a native legend. After all, didn’t the Syilx First Nation really “own” Ogopogo? There were murmurings of “cultural appropriation”. The Guardian picked up the story, framing it as an indigenous nation trying to reclaim its culture. That is when Council voted to relinquish its copyright and assign it to the Okanagan Nation Alliance, which was happy to receive it. The Globe and Mail reported that “For $1, council voted to assign and transfer to the Okanagan Nation Alliance all copyright, title, interest and property including trademark rights arising from the commercial and non-commercial use of the Ogopogo name”.

Except that is not exactly what happened. The City of Vernon Council Minutes for October 12 make it clear that what Vernon transferred to the Okanagan Nation was;

“all copyright, title, interest, and property in the Work, (emphasis added) together with the right and title to any derivative works arising in any way from the Work, and any trademark rights arising from the commercial or non-commercial use of the foregoing copyrighted protected works or derivates thereof and any goodwill related thereto, without reservation or exclusion, together with all profit, benefit, and advantage that may arise from printing, reprinting, or selling said copyrights for the remaining term of the copyright”.

What was transferred were the rights to “the Work”, not the name Ogopogo. But what was the work? It was registered under Copyright #102327 on June 9, 1953, but we may never know what it actually was. The original copyright certificate, kindly provided by the City of Vernon (see below), simply says that Seabrook registered an “unpublished literary and artistic work entitled Ogopogo”. An unpublished work can be copyrighted as long as it is “fixed”, but since it was unpublished, it may no longer exist, and as CIPO made clear, when a work is registered no copies of the work itself are retained.  Certainly, the City of Vernon appears to have no idea of what the work contains nor, it appears, does anyone else. Seabrook is no longer around to ask.

I asked Jadon Dick, founder of Okanagan Publishing (Levers’ publisher) why he and Levers approached Vernon to clear the copyright when multiple books have been published about the Ogopogo without doing so. All that Vernon owned was copyright to an unpublished work. Mr. Dick replied that he had not known about Vernon’s copyright before speaking to Levers. His impression was that in the view of the CIPO, the name Ogopogo was not copyrighted (this is not surprising, since a name cannot be copyrighted) but since Levers had got Vernon’s approval the first time around, it seemed to make sense to ask for approval for the sequel. As publisher, he wanted to cover all the bases. He felt that if Vernon had some form of copyright, even though it was not enforcing it, it would be better to have permission before moving forward with the book, rather than have a controversy later which might negatively affect sales and marketing. This was “due diligence” at its best. It was only after they approached Vernon, and winkled out the old copyright document, (and got permission from the City to use the word Ogopogo, which technically they had no right to grant) that they realized the nature of the copyright and that no permission was in fact required. Nothing in Seabrook’s earlier unpublished work was used, and Dick has no idea what that work consists of. The copyright approval request could have become a non-issue but by this time, the reconciliation train had left the station.

Dick goes on to say that the Ogopogo copyright is more symbolic than anything else, and that despite all this, the gifting of the copyright to the Okanagan Nation Alliance is a symbol of giving back control of the Okanagan Lake Creature.

“Okanagan Publishing House is/was pleased to hear that the City of Vernon gave the Ogopogo copyright to the Okanagan Nation Alliance. We see it as a broader movement to give back control of the Okanagan Lake Creature and how we speak about the Nx̌ax̌aitkʷ/Ogopogo to the Indigenous people of this area. This is something that we seek to do in all of our publications.”

So that solves the mystery of the City of Vernon’s copyright. If Levers had not, in an excess of zeal in 1984, sought permission to use the name, the issue would not have come up in 2021. The whole question of cultural appropriation is seen very differently 35 years later. Although Vernon never had the copyright to the name Ogopogo, the assignment of the name makes a good hook for a story about reconciliation. The Okanagan Nation saw the City of Vernon’s actions as “respectful”, even if what they actually got, for $1, were the rights to an unpublished work. But more important, they got recognition of the fact that the lake creature is indelibly linked to their traditional culture, and an acceptance that they should have some say over it.

However, I cannot resist adding one final, ironic point regarding the name Ogopogo. Although native groups had an oral tradition of a lake creature, it had an entirely different name. It was known as N’ha-a-itk and was probably never considered by the original peoples as an actual creature but rather the spirit of the lake, much as certain geographical features are imbued with spiritual meaning by Indigenous groups.

The name Ogopogo was actually conferred by tourism officials in the 1920s and drawn from an old  English music hall song (listen here), whose lyrics included;

“I’m looking for the Ogo-pogo, The funny little Ogo-pogo.

His mother was a polliwog, his father was a whale,

I’m going to put a little bit of salt on his tail.

I want to find the Ogo-pogo”  

That, at least, is the version published by the BBC

The N’ha-a-itk of the Syilix and the Ogopogo that was labelled by officials keen to promote tourism have become very different things, although springing originally from the same source. You can’t put that genie back in the bottle. For better or for worse, the well-known Ogopogo name and image will no doubt continue to adorn pop and wine bottles, boxes of chocolates, motels and RV parks, bed and breakfast establishments, a stucco and masonry business, a gymnasium, a moving and storage outfit—even an air cadet squadron, and will continue to feature in books, plays, and artwork.

If Vernon didn’t hold the copyright to the name Ogopogo, then the Okanagan Nation Alliance (ONA) doesn’t either despite the assignment of whatever rights Vernon had–or thought it had. People remain free to continue to express their own idea of what the Lake Okanagan water spirit is, what its characteristics are and to tell stories about it. And they can continue to copyright those artistic expressions and creations, but hopefully will do so in a way that is respectful of the creature’s cultural connotations.

At the end of the day, this story is not really about copyright. It is about reconciliation and respect. It was an appropriate decision for Vernon City Council to turn over its “rights” to the First Nations of the area. Vernon’s gesture of reconciliation—regardless of whether it actually involved transfer of copyright over the Ogopogo name or not—will remain a symbolic token of goodwill and a reaching out to First Nations groups that seems to have been well appreciated by the recipients.

© Hugh Stephens, 2022. All Rights Reserved.