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Impersonal Foul

Nike knocks the air out of a first-time children's book writer.

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By Ben Joravsky

If things had gone the way Fern Schumer Chapman planned, she'd be sitting pretty right now, the red-hot author of a best-selling children's book.

But the company that made billions saying "Just do it" said don't do it to Chapman, and her dreams were smashed.

"This was a horrible glimpse of the real world," says Chapman. "It shows you how the bullies of the world use their might and muscle to push the little guy around."

At the heart of the matter is whether Nike has exclusive rights to "Air," as in Air Lucas, the title of Chapman's book about a basketball-playing dog who winds up on the Bulls. Her inspiration was the Chapmans' family dog, Luke, a high-jumping mutt with a remarkable ability to snatch food from the kitchen table. "I started writing it around the time when Michael was playing baseball and everyone was wondering who's going to be the next Jordan," says Chapman. "One day Luke jumped up to grab some food off the table, and my nine-year-old son Ross went into the standard play-by-play--'He sneaks, he leaps, he scores.' That set a lightbulb off in my head. I thought, 'My gosh, what if the next Michael Jordan was a dog?'"

As she sat down to write, the idea took shape. It wasn't good enough to be any old dog; he had to feel misunderstood, as though "he wasn't getting respect for helping the family by cleaning scraps from the table," says Chapman. There also had to be a nemesis, in this case the mom, who knows nothing about basketball and couldn't care less if Lucas makes the Bulls.

"The boy in the family contacts Phil Jackson, who visits the house and checks out the dog's moves and tries to cut a deal with the mom--the dog's narrating the whole story, by the way," Chapman continues. "You know how Phil Jackson's always giving books to his players. In the story, he tries to win the mom over by giving her The Hidden Life of Dogs. But the mom's hardheaded. Her objection is that playing for the Bulls would only encourage the dog's bad behavior. Finally Jackson offers her a spot on the Luvabulls and she goes for it. I guess everyone has a price."

Luke leads the Bulls to the championship and then retires. "It's just like Jordan," says Chapman. "He says he wants to do other things with his life. He's going to open a restaurant, maybe spend more time with his family. You know, the whole thing. It's a parody."

Chapman wrote the book, paid an artist to draw illustrations, and hooked the interest of Todd Musburger, an agent who also happens to represent Phil Jackson. Musburger tried to peddle the book to various national publishers, but they all turned it down on the grounds that it was "too regional" (never mind that the Bulls are an international sensation).

Chapman thought she had a deal with a local publisher. But he raised a sticky issue: Did she have a deal with Nike? "He pointed out that the dog's named Air Lucas and I have references to people wearing Air Jordans," says Chapman. "He wanted Nike in on the deal."

By then Musburger had dropped the project and Chapman had hooked up with Sheri Ziemann, another local agent, who suggested she get backing from the Bulls.

"Sheri called the Bulls and told them about the book and they said, 'This is really fun, but why do we need this?'" says Chapman. "And when you think about it--why do they need it? They're printing money over there."

Ziemann also called Nike.

"I got hold of their chief legal counsel, who was very kind but straightforward," says Ziemann. "He told me they take these things very seriously. I said, 'Can we have your permission to use these names?' He said, 'No, we don't grant that kind of permission.' They never said, 'We will sue you if you do it.' But they didn't have to say that, because I just knew. They made it clear--you're either with us or against us."

Then Ziemann dropped a bombshell--the Bulls might sue. "She said it's possible they would drag me to court for using their symbols," says Chapman. "I know that sounds ludicrous. Phil Jackson, Michael Jordan, the Bulls--these are all public figures or entities. But Sheri said the threat was there."

Ziemann dropped the project, leaving Chapman on her own. She decided to seek the opinion of a high-priced corporate lawyer who specializes in trademark cases. The lawyer was very blunt. "He asked me, 'How much do you like your house?' I said, 'I like it a lot.' He said, 'Well, if you write this book you have to be prepared to lose your house, because you'll be spending a lot of time in court.' I didn't need him to draw me a picture. I know these corporate lawyers are big bullies on retainer who get paid big bucks to waste your time in court.

"The lawyer told me Nike had 27 copyrights on the word 'air.' He said, 'Just change the name.' I thought of Hair Lucas or Airedale Lucas, but legally it's all pretty much the same. The thing is, to make the parody work, to make the book fun for parents as well as kids, you have to have jokes that the parents will get even if the kids don't. You have to parody real names or real products and real companies. The lawyer said, 'Listen, I represent McDonald's.' In other words, he argues both sides of the issue. 'If you were to do something like this to them, I'd be on you real fast.'"

The case raises a host of intriguing questions about the rights of writers and corporations. Are writers prohibited from setting a novel in Wrigley Field without the Tribune Company's permission? Have we reached the point where common words like "air" belong to corporations? And while we're at it, what's with Nike anyway? This is a company worth billions of dollars; their name and logo are almost everywhere you look. The papers are filled with stories of Japanese kids paying thousands of dollars to wear Nike sneakers. Couldn't they let just one little writer write one little book about a dog named Air? How much money can they possibly need? Is there no limit to their greed?

"If you have the right to something, you have the right," explains a Nike publicist at the company's Oregon headquarters who identified herself only as Alexa.

You mean there's a principle here?

"Yes, that's right."

The matter has engendered a lively debate among writers, publishers, and lawyers.

"You have to understand Nike's psychology," says Doug Masters, a Loop-based lawyer whose expertise is trademark law. "If they let one person do something it creates a benchmark, so they have to be vigilant against anyone who could be a problem, no matter how small or incidental.

"There's a whole series of cases in this area. For instance, Cliffs Notes took Spy Notes to court, arguing that people could be confused by the two. Of course, in a parody you have to involve the other product's works. Otherwise it's not funny, it's not a parody. Spy Notes won the case, but it cost them a lot of money."

So would you advise Chapman to publish?

"It's hard to say in the abstract. There are two questions you have to ask yourself. Are you right? And, are you going to win? There's a lot of things you're right about, but are they worth fighting for? Remember, Nike has nothing to lose except their money, and they have a lot of that."

Still, there are bold sorts who say Chapman should publish, damn the consequences. "If Nike sues her that would draw more attention to her book than she could pay for," says Mark Weinberg, who publishes the Blue Line and the Foul Line, satirical guides to Blackhawks and Bulls games. "Even if you lose you win because you're going to get the publicity. Of course I think Nike's being ridiculous. Right now we have Michael Jordan on the cover of the Foul Line with the headline 'Hare Jordan!' It's a joke, it's parody. Forget it, Nike--quit picking on little guys."

But Chapman's lawyer said she might lose her house if she publishes.

"She should get another lawyer. Bad lawyers always say no. Good lawyers think of ways around things. We at the Blue Line aren't afraid of being sued. We don't love our house. What house? Take it, please."

Chapman says she's weighing her options. "I can change the names or let it sit unpublished, a great waste of work and talent. I could be brave and self-publish it the way it is. I know I'd have a great case if they sued, but so what? I'd win a legal victory and I'd be broke. They're bullies. They're using their power to undermine what's constitutional. To use a basketball term, they've boxed me and Air Lucas out."

Art accompanying story in printed newspaper (not available in this archive): Fern Schumer Chapman photo by Jon Randolph.

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