Copyright: Naming characters from movies, television and books
guildofblades:
<<I have encountered no legal hassles at all. I have never received a cease-and-desist letter.<<
And I, on the other hand, have recieved 2 of them and ignored them both because they were groundless. Just because someone sends a cease-and-desist letter it doesn't mean they have the legal right behind them, just that they wish that you would, well, cease-and-desist.
I too am not a lawyer, but am fairly well verse in copyright and trademark law.
I won't tell you what you can and can do when it comes to the issue copyright and trademark. On this issue you are dealing with two potential issues. Copyright if you are thinking to use art that represents characters and whatnot, and trademarks if you are looking at using or referencing named characters.
On this topic you have two issues you need to concern yourself most with. There is an abundance of material available on both for your reading and self education, or you can buy yourself a sit down with an attorney who is well versed with the subject matter.
The first issue is that of "fair use". Strictly speaking, you are not allowed to use any of the material that you have suggested. Excepting that there have been written a handful of exceptions which are all defined as "fair use". The thing to watch out for is, the "fair use" clauses in copyright and trademark law have a few fairly well defined uses, but there is a whole lot of cases that will fall into a sort of grey area where its not really sure if fair use would apply or not. The only guidelines you will find for those grey areas are precedents set in case law itself, which you can go wading through if you have enough familiarity to understand the legal speak held within, or, well, you an hire an attorney familiar with the relevant case law.
The other issue is more of a consequence for violation. That would be the case where your product were to be defined (by a judge and court ruling) as a derivative. Just referencing trademarks or quoting elements of copyright protected text would not likely make this happen. But if your product, through the use of other works became "defined" by those other works, it could happen. If you ever consider using any protected elements from any other works, understanding what constitutes a derivative works and knowing how to make sure your product doesn't fall under such a categorization is important.
As Ron pointed out, "fair use" does give you some allowed uses under some cimcumstances and those may or may not be suitable for the purposes you want. I won't simply tell you to "go see a lawyer" as I am more a believer of a publisher having the need to firmly understand their rights in this area themselves. But I highly advise being fully informed of your rights and boundaries in this area before making the decision to publish anything that remotely includes anything copyright or trademark protected.
Ryan S. Johnson
Guild of Blades Retail Group - http://www.gobretail.com
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com
David C:
I'd give different advice, though take it with a grain of salt. I have the least experience of everyone here.
"Choose your battles wisely."
Referencing literary work will probably not raise anyone's hackles. The MPAA is probably not going to care about you. The RIAA attacks like a blind, rabid dog, I'd avoid them like the plague. WotC, White Wolf, SJG all have a lot more money than you and are in the same business, I'd avoid mentioning... say, "Drizzt."
In the US, people can sue you, even if the case has no merit. They might even be able to sue you just to hurt you financially. I imagine that's very rare in the RPG market, but basically what I'm getting at is "Know the attitude of those your mentioning, and avoid stepping on their toes."
Eero Tuovinen:
If you Americans don't mind, I'd actually like to hear more about these frivolous lawsuits. Are they a real phenomenon, and can't you do anything about them? I mean, isn't it bit of a problem if your legal system is basically predicated on fearing the stronger party and doing what they tell you out of fear? I see much of the legal discussion at this site and others in this same light: for example, the constant harping on how people should only listen to lawyers ("I am not a lawyer!") and not learn the laws themselves sounds to me like a recipe for a degenerating civil society.
David's inspiring me to complain about this direction of discussion because to me the whole notion of choosing your battles "wisely" seems wrongheaded: hasn't justice already lost if everybody decides their course of action as artists and publishers based on imagined reprisals from shadowy giant corporations that apparently can get anything to stick on you in court if they want to? My own reaction to that kind of legal bullying is a primal battlecry: if you want to take away my right to discuss Drizzt Do'Urden in print, you'll damn well have to do better than scaring me out of it on web forums.
I know that this is a bit of a meta discussion compared to the original question, but I find it problematic that I can't even properly tackle this premise - how do I evaluate the proper legal and ethical publishing conduct if advice boils down not into reasoned ethical guidelines but into some sort of fear-and-uncertainty -based wholesale censure? "Don't annoy the bully" is not an answer to the specific question of how rpg game text should treat trademarks, it's just a plea for a lawless society. Or is there something going on here that I don't understand?
Ron Edwards:
Hold on, again. The discussion has moved away from what I specified. As usual, it's not one person but a phrase here and then someone else's paragraph next, and then someone else's whole post, and I have to stop it again before the thread becomes one of those threads and I kill it. David, I am certain you posted with a constructive intent, but what you're saying isn't concrete. What you "would" do isn't important. We're talking about real policies and experiences.
Eero, you are clearly stating the reasons why I continually crack down on fear-mongering here. I have observed, over the past decade and a half, a kind of eager masochism among gamers and would-be publishers to imagine TSR, in particular, as a paralegal Sauron ruling over gaming publishing. That is why I am calling for publishers to say what they actually do and have actually experienced.
Unfortunately, your post also calls for examples of frivolous lawsuits. You have just invited a thousand anecdotes that I must step in - now - and stop before they get started. For your larger questions about American litigation, you'll need to go to more authoritative sources, somewhere else.
Let me clarify another thing: "Talk to a lawyer" does not mean "remain ignorant of the law." No one said the latter. In fact, all the advice here at the Forge says over and over, talk to a lawyer and learn the law. Two different things, both important.
Best, Ron
Gregor Hutton:
I helped publish a new fiction/poetry magazine a few years ago with a friend and one of the submissions contained (several verses of) lyrics from a song by the Black Crowes.
I find these guides from Wiley for their authors helpful. For our case they advised getting permission for any part of a song lyric (even as little as one line) or even the title of a song as this could be trademarked (on page 9).
So, we wrote to the music publisher of the song lyrics and they were reasonably prompt (within a month I think) at getting back to us -- they were actually happy for us to use the lyrics with permission, but there was a fee of something like $50. We told the author of the story he could pay the $50 or we would pull the story. We ended up pulling the story as the author wouldn't pay for it (and the magazine wasn't going to foot the bill).
Anyway, an e-mail to the publisher of the song lyrics cost us nothing and let us know if we had permission or not (or what we had to do to get it). We personally weren't comfortable about going ahead without that permission. I find the linked PDF's advice on writing to someone for permission handy too.
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