Copyright: Naming characters from movies, television and books

[Seamus]

Is it okay to mention the name of a major character from a television series, film or book to illustrate a point. In the character creation section of our rule book, we mention characters like this, as examples of the types of PCs players can make.

[Tyler.Tinsley]

not a lawyer here

copyright is a terribly sticky issue. i would advise against what your doing. however games like "before i kill you Mr Bond" survived for some time before they had to re-name them. so there is a chance that it will just simply go unnoticed or unchecked for a time.

[Ron Edwards]

Tyler, I ask that you practice better self-moderation. What you are doing, no matter what you intended, is basically scare-mongering. Please see how I respond to Seamus here to see the care I'm taking. If you are not a lawyer, and/or if you are not a publisher who has dealt with issues of this kind, you should recognize that you should not even post.

Seamus, I can tell you what I do, and I can tell you my experience as a publisher. What I cannot do is answer your question about what you can and cannot do. That very phrasing on your part demonstrates that you have not talked to anyone professional about this, or looked at enough official, on-line information about copyright. There are a bunch of links sticky'd at the top of this forum for exactly that reason.

As for what I do: I reference names, titles, and events from other works very frequently. I include quoted text, in some cases scattered regularly through my entire book. I include the following text in my indicia page: "Mention of trademarked works of any kind in this text are intended as reference and not as challenges to trademark or copyright." I adhere closely to the U.S. legal rules that define fair use, which is the key term you need to look up (but not here - seek an actual legal, official source).

On the rare occasions that I've contacted representatives of what seemed to me to be tricky properties, I have always received a positive, permissive response. Notice that unlike the example Tyler cites, I do not put the name or reference into the title of my work. Nor do I feature titles or others' characters as, for instance, example characters of my system. Nor do I use any such names or references on the cover as a selling point.

I have encountered no legal hassles at all. I have never received a cease-and-desist letter.

That's my experience to show you a little bit of reality, strictly mine alone.

Other publishers are welcome to share what they do and what their experiences have been. People with legal standing or who can point to especially useful on-line resources about fair use (for instance), please feel free to contribute. Everyone else, please understand that anything you have to say is, by definition, off topic. If you disagree and think you have something to offer, check with me first by private message.

Best, Ron

[Tyler.Tinsley]

Something about the op reminded me of the trouble City of Hero's got into, with players creating characters that looked/played like marvel characters.

It was a very hard fight on both sides but marvel won. many people felt very strongly that marvel had no case and they may have well as sued the crayola company because the crayons they produced could be used to make illegal copies of marvel characters.

Now imagine if city of hero's had little pop ups telling people how to make Wolverine, marvel would have had a much stronger case.

I'm sure there is room for fair use, especially when it comes to niche RPG's that reach fairly small audiences. I guess I'm just used to dealing with larger  more lumbering things. Good lord the latest big big battles expansion has been held up in legal for half a YEAR!

I have had publishers advise against using risk army men in my prototypes for cripes sakes!

Also why not just work from whole cloth? I would rather be quoted then quote someone else any day of the week.

[Eero Tuovinen]

I agree with Ron here, just last year I published a game full of references to prior art. I'd also like to say that this is a pretty important issue for roleplaying, as misinformation about copyright, trademark and fair use is endemic and strongly established in the practices of the field in a way I've never seen in other, less American and less commercial genres of writing. I'd like nothing more than seeing more rpgs written with clear references and dialogue towards the prior art they engage with. The sort of storytelling rpgs that would find references to prior art useful are the exact sort that would benefit greatly from frank discussion of other works. It'd be great to read a genre roleplaying game that opened with a full literary analysis of some seminal work of that genre, just to show the reader how the author is going to pick apart the topic and apply it in roleplaying. I like Sorcerer supplements for this exact reason; they have a very frank and functional relationship to the art they want the reader to take into account in their own roleplaying.

Seamus: the specific example you mention seems utterly non-problematic to me. Your reference to the other people's work is not used in marketing here (which might cause a trademark violation), and it certainly has a clear function in the overall structure of your work. No reason at all not to reference other works in this way that I can see.

[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.

[Eero Tuovinen]

Song lyrics are a pretty touchy subject in that like all poetry, a small quotation often comprises a large percentage portion of the whole work. Thus it's easy to argue a copyright violation in these cases, especially when the quotation is included to provide the aesthetic value it originally has as a art, as opposed to using it as a demonstrative devise for something else.

[Seamus]

If it helps here is the actual paragraph I am concerned about. It comes from our "table talk" section. The referenced characters are bolded, and the text hasn't been edited yet:

Mark: I want to be a really skilled agent, like Jack Baeur, Michael Samuel, or Michael Weston, even Macguyver.
(Mark laughs when he includes Macguyver, but he has explained what he is looking for in a character)

[RabbitHoleGames]

Name dropping isn't bad, just remember to have a bibliography at the back.

Also a little thing I like is that you can look in real folk tales and find things to use. WoTC may not like it, but anyone can call their dark elves Drow. It is an actual Orkney word for dark elf. (Just an added bonus since Drizz't was mentioned)