[Jenred]

Abattoir MUD advertisement:
"Not with ten thousand men could you survive the Abattoir. It is folly."

A line from LOTR: The Fellowship of the Ring, both book and movie:
Boromir : One does not simply walk into Mordor. It's black gates are guarded by more than just Orcs. There is evil there that does not sleep, and the Great Eye is ever-watchful. It is a barren wasteland, riddled with fire and ash and dust. The very air you breathe is a poisonous fume. Not with ten thousand men could you do this. It is folly!

Anyways, I thought it was funny at first. Using a line from a famous book and movie to bring people to their MUD, then I thought maybe illegal, but then I thought of other marketing schticts used to advertise... like "Got MUD?" Instead of "Got Milk?"

anyways...

[Ogma]

IANAL, but I doubt this is illegal. It might be tacky and trite, but not illegal.

[Kylotan]

It's tacky, it's trite, and I came up with the idea. It's also quite clearly fair use, given the following common criteria:

1. The purpose and character of the use - it's being used in parody, which is protected under US, UK, and maybe international law. It is clearly paraphrased to make this clear. See also: Bored Of The Rings
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. - The proportion of text used in relation to The Fellowship Of The Ring (screenplay, book, or movie) is minimal.
4. The effect of the use on the potential market for, or value of, the copyrighted work. - Nobody is going to be having fun reading our banner instead of watching FotR again, thus losing New Line millions of dollars.

Also taken into consideration would be the fact that we are a non-profit entity (Diku license).

I wish people would do a little more research on laws before accusing everything that is the tiniest bit derivative of being 'illegal'.

[JilesDM]

Originally Posted by Also taken into consideration would be the fact that we are a non-profit entity (Diku license).

That would only be taken into account when assessing damages, not whether or not what you did was protected by fair use.

[Kylotan]

Not entirely true. Copying done for a profit has obvious implications for the 4th clause above, as well as the 1st (the full version being "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"... my mud clearly falls somewhere in between. I also quote from the Wikipedia that "If it is obvious that the user is attempting to make a profit from the use, then it suggests that it is more likely that the use is infringement."

[JilesDM]

Incorrect. Educational use is an explicitly defined special case. As Wikipedia points out, profitable use suggests that infringement is more likely because if that use is profitable, it is highly likely (if not guaranteed) that the owner of the copyright in question could have made those profits him/herself. Non-profit non-educational use, however, is provided no special protection whatsoever.

[Kylotan]

And I never intended to imply that it did, only that it is a factor in how a judge may decide such a case if previous cases didn't dictate the result.

[JilesDM]

Originally Posted by And I never intended to imply that it did, only that it is a factor in how a judge may decide such a case if previous cases didn't dictate the result.

Again, it does not factor in at all. Non-profit use is not an affirmative defense against a charge of copyright infringement. For-profit use is more likely to be infringing, but whether or not a given use is for profit or not has no bearing on whether or not a given action is infringing. In other words, there is a correlation between for-profit use and a higher likelihood of copyright infringement, but the relationship is not causal.

[Kylotan]

You are disagreeing with several online sources I found today, and assuming I said things that I didn't. (eg. I never claimed it was an 'affirmative defence', merely that it would be a factor in a judge's appraisal of a different defence, as clearly stated in guidelines 1 and 4.) However I have no wish to continue to debate this single point as it's not really relevant in my case.

[Xerihae]

Moved to the Legal Issues forum due to topic change.

Not with 10,000 lawyers could you make a legal case out of that. It is folly. It is frivolous and it isn't the law.

[Jenred]

Originally Posted by I wish people would do a little more research on laws before accusing everything that is the tiniest bit derivative of being 'illegal'.

If people would read what I first wrote, I said:
"At first I thought Illegal, then thought about many other marketing schticts that do similar things etc." I was saying it was funny at first, then maybe I thought illegal, then I thought no. So stop thinking I'm like accusing you or whatever.

Originally Posted by 1. The purpose and character of the use - it's being used in parody, which is protected under US, UK, and maybe international law. It is clearly paraphrased to make this clear. See also: Bored Of The Rings

Parody... hmm:

Originally Posted by A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.

This doesn't really provide a comic effect, or ridicule it. Because the state of the advertisement doesn't tell what the Abattoir is, or who is even saying it. If the Abattoir was some sort of raunchy prostitute and the person saying it was a drunk sailor to his friend while sizing up the woman in the bar, then yes. It might be a parody. But the way the advertisement is portrayed, its not a parody. So scratch that excuse.

No one knows who or what the Abattoir is if they are reading the advertisment for the first time with no clue about the MUD. I would think it some dungeon, or evil land. Like the place it was being substituted for in the original line.

Anyways, its not really comidic, not parodying anything because no one knows the situation that the statement is taking place in because the advertisement is too short to display such.

All in all it seems to be a cheesy way to draw people in using a line from a current movie at the time.

[Jenred]

Oh, and another thing. If you realize this started in: Mud Humor.
Because my intial thinking was: How lamely funny.

I didn't put it in the legal discussion because it wasn't like: Someone sue these guys please!

Anyways, but the point was entirely missed I guess.

[KaVir]

Copyright does not protect names, titles, slogans, or short phrases.

[Stilton]

KaVir:

Originally Posted by Copyright does not protect names, titles, slogans, or short phrases.

Correct. But, the copyright isn't protecting the phrase, it's protecting the book. To use any portion of the book, including short quotes, you have to argue that you're licensed to do so or that it's fair use. I don't believe there's a "small excerpt for any use you want" exemption, and this is clearly not review, commentary, or parody. It's an ad. IANAL, but I don't think it's permissible to lift memorable phrases from creative works and use them in advertising.

Is the ad attempting to leverage off of the public recognition of Tolkien's work? Clearly, yes. Is that one of the primary danger signs for thinking about using something that you are not completely responsible for creating? Yes.

Is it actionable? Who knows. Straight copyright might not even be the only claim: there are plenty of laws against obnoxious advertising practices anf general tort laws.

Stilton

[JilesDM]

Originally Posted by You are disagreeing with several online sources I found today, and assuming I said things that I didn't. (eg. I never claimed it was an 'affirmative defence', merely that it would be a factor in a judge's appraisal of a different defence, as clearly stated in guidelines 1 and 4.)

What you're saying is the definition of an affirmative defense: An explanation for a defendant's actions that excuses or justifies his behavior.

Claiming protection under the fair use provisions in copyright law is an affirmative defense. Claiming that a work is a parody of the copyrighted material in question is valid justification for a fair use affirmative defense. Claiming that because your use is not profitable it is fair use is an attempt to use that as an affirmative defense, whether you are aware of it or not, but there is no legal basis for such, therefore it is entirely invalid.

[Brody]

Woo! I am so relieved we've finally got a lively discussion topic about intellectual property and copyright law. I thought this day would never come!

...

Oh, that's right, we just endured 30+ pages of it recently! Some folks just can't get enough, I guess.

Enjoy, armchair lawyers!

[Tavish]

Just what we need, a thread that is always on the recent discussions that nobody pays attention to.

Enjoy fellow sarcasm slingers.

[Kylotan]

Originally Posted by (Jenred @ July 22 2003,13:40) Originally Posted by A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. This doesn't really provide a comic effect, or ridicule it. ... No one knows who or what the Abattoir is if they are reading the advertisment for the first time with no clue about the MUD. I would think it some dungeon, or evil land. Like the place it was being substituted for in the original line.

How can you claim in your first post that "I thought it was funny at first" and then now claim "This doesn't really provide a comic effect"?

And just because someone doesn't know what the Abattoir is (which would be pretty unlikely, given the context in which our ads appear), doesn't make it any less of a parody.

[Kylotan]

Originally Posted by (Stilton @ July 22 2003,19:49) I don't believe there's a "small excerpt for any use you want" exemption, and this is clearly not review, commentary, or parody. It's an ad. ... Is it actionable? Who knows. Straight copyright might not even be the only claim: there are plenty of laws against obnoxious advertising practices anf general tort laws. Stilton

Adverts have used parody for many years, and will continue to do so. I'm sure that if being an advertisement lost you the parody defence, then someone would have sued someone else long ago and put an end to it. In fact, they tried, and failed. http://www.commondreams.org/views/091300-102.htm

As for "obnoxious advertising practices"... what? I think you're being ridiculous here.

[Kylotan]

Originally Posted by (JilesDM @ July 22 2003,20:54) Claiming that because your use is not profitable it is fair use is an attempt to use that as an affirmative defense, whether you are aware of it or not, but there is no legal basis for such, therefore it is entirely invalid.

Let me spell this out, cos I'm not getting through - I am not claiming that because my use is not profitable that it is fair use. I am not that dumb. I am claiming - asserting, even - that judges take it into account when they decide whether the use is fair or not. As far as I can tell, all I have to do is please 'fair use' as my affirmative defense. Then, the guidelines - and special cases such as parody - come into play.

Please, go to: http://www.copyright.gov/title17/92chap1.html#107
Read the bit that says quite clearly that "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

If you still disagree with that, please take it up with your local Representative or whatever, because that is under the heading "Copyright Law of the United States of America" on a government web site.

[JilesDM]

I have read it and have had it explained to me by several IP attorneys at seminars. Whether or not a use is commercial only comes into play with respect to determining fair use if you have a valid affirmative defense based on educational use. E.g., it is fair use for a public school to make multiple copies of a portion of a literary work in order to aid in classroom instruction. It is generally not fair use for a profitable private educational institution to do so. Also note that there is an explicit difference between educational use and scholarly use. It is fair use to quote portions of a relevant work in a technical trade journal, for instance, even if said journal is profitable (critical difference: instructing individuals in a field vs. advancing the state of the art of the field). WIth respect to a fair use affirmative defense based on parody, whether or not the use is commercial is entirely irrelevant.

Your banner is obviously not educational. Whether or not you profit from it is irrelevant with respect to determining fair use.

Originally Posted by As far as I can tell, all I have to do is please 'fair use' as my affirmative defense. Then, the guidelines - and special cases such as parody - come into play.

Wrong. You must specify the nature of your plea and provide evidence of and argue its validity.

As an aside, while I believe that your banner is a fair use (due to the text in question comprising an insignificant portion of Tolkien's work), it is also doubtful that it is a parody. The legal definition of parody is, roughly, a humorous form of social commentary that is achieved by contrasting a well-known original work and a parodic twin. The Daily Show's use of real news clips is a good example of parody, as are songs by Wierd Al Yankovic (e.g., the infamous Amish Paradise) and various Mel Brooks films. The primary purpose of your use of the phrase in your banner is, arguably, to use the association between the phrase and Tolkien's work to generate interest in your MUD, and not to provide a humorous social commentary of Tolkien's work, likely invalidating an affirmative defense based on parody.

[Stilton]

Kylotan:

Originally Posted by Adverts have used parody for many years, and will continue to do so. I'm sure that if being an advertisement lost you the parody defence, then someone would have sued someone else long ago and put an end to it.

I never claimed otherwise. It does have to actually be parody, though. (and even bypassing copyright claims wouldn't necessarily get you around all of the legal obstacles.

Originally Posted by As for "obnoxious advertising practices"... what? I think you're being ridiculous here.

It's clear that you're using someone else's IP to boost your own product. That may be ok if it's actually parody, but as far as I can see it isn't.

An abattoir is basically a killing ground (slaughterhouse, often used figuratively). From your capitalization of the word, I assume you've used it as the proper name of a geographical location. You're using the phrase in the same way Tolkien did, not mocking it.

Stilton

[Mason]

Originally Posted by (KaVir @ July 22 2003,17:17) Copyright does not protect names, titles, slogans, or short phrases.

Not entirely true. As a general rule, copyright protection does not extend to names, titles or short phrases. However, there are instances wherein they are so defined as to lead to infringement. "Star Wars" and "Luke Skywalker" are both protected by copyright (and trademark law, as well). Further, "Use the force, Luke" would likely be protected as well. The test isn't whether it is a name, but whether the character, title or phrase is so highly developed as to tell a story by it's mere mention.

[KaVir]

I wrote:

Originally Posted by Copyright does not protect names, titles, slogans, or short phrases.

Mason wrote:

Originally Posted by Not entirely true.

http://www.copyright.gov/help/faq/faq-protect.html

What Does Copyright Protect?

5. How do I copyright a name, title, slogan or logo?

Copyright does not protect names, titles, slogans, or short phrases.

I believe you are thinking of trademarks.

[Stilton]

KaVir:
(responding to Mason, and supplying a link to an FAQ)

Originally Posted by I believe you are thinking of trademarks.

No, he's correct.  Your cite is literally true as a response to the question "I thought of this great character name,  'Xyzzy'! Can I copyright that?"  Of course not, as the FAQ says, but the question as worded in the FAQ is not applicable to this situation.

Now, if you went to the trouble of writing a popular trilogy about Xyzzy, you may well have some rights over the use of the name in certain ways.

Other FAQ's such as
http://www.chillingeffects.org/fanfi....cgi?print=yes
are clearer on this topic.

You can't usually get protection for a name or phrase, but that name or phrase might acquire protection as part of a work which is significant enough to copyright.

Clear now?

Stilton

[KaVir]

Originally Posted by No, he's correct.

He claimed that the names "Star Wars" and "Luke Skywalker" are protected by copyright law.  The copyright.gov website states otherwise.  If you think the US Copyright Office has made a mistake, then obviously you should contact them asap.

Originally Posted by You can't usually get protection for a name or phrase,

There is no "usually" about it.  Copyright law does not protect names or phrases.  Those are instead covered by trademark law, as I already pointed out.

Originally Posted by but that name or phrase might acquire protection as part of a work which is significant enough to copyright.

Yes, but it's the creative work as a whole which is copyrighted.  Copying even a small section of that creative work might well result in a copyright violation, but to claim that something is a copyright violation because it has 10 words in common with another creative work is just absurd - if that were the case, it would make it practically impossible to ever create anything new without first inventing your own language.

[Mason]

Trademark status does offer protection for names such as Star Wars and Luke Skywalker.  However, both names are also protected by copyright.  The test isn't whether it is merely a name, but whether the name constitutes a character that "is delineated with enough specificity so as to garner copyright protection."  Anderson v. Stallone 11 U.S.P.Q.2d 1161 ( C.D.Cal. 1989).  See also, Warner Bros. Pictures v. Columbia Broadcasting system 216 F.2d 954 (9th Cir. 1954), cert denied, 348 U.S. 971 (1955).

[Stilton]

KaVir:

Originally Posted by He claimed that the names "Star Wars" and "Luke Skywalker" are protected by copyright law. The copyright.gov website states otherwise. If you think the US Copyright Office has made a mistake, then obviously you should contact them asap.

They haven't made a mistake. You're not looking carefully enough at the question part of the FAQ entry. You can not generally copyright a name. That doesn't mean that a name/character can't BE PROTECTED by copyright, as Mason points out.

Originally Posted by Copying even a small section of that creative work might well result in a copyright violation, but to claim that something is a copyright violation because it has 10 words in common with another creative work is just absurd

You could infringe with less than 10 words. Example: a story with protagonists named "Kirk" and "Spock."

It MIGHT be possible to do, but you'd have a very uphill fight if you claimed that you were not attempting to leverage off of copyrighted Star Trek IP.

Originally Posted by if that were the case, it would make it practically impossible to ever create anything new without first inventing your own language.

It's the distinctive parts of the work that are protected, not every combination of words that happens to appear in it.

Star Trek characters may have been known to have said "Good morning" at some point, but that's not distinctive to Star Trek in any way. "Live long and prosper," on the other hand...

Stilton

[KaVir]

Originally Posted by Trademark status does offer protection for names such as Star Wars and Luke Skywalker. However, both names are also protected by copyright.

No, they are not. I could (for example) write a story about a little winged goblin called "Luke Skywalker" who lived in a castle with a dragon and a fire-breathing goat, and there would be no copyright violation. I could also (for example) create a strategic defense initiative organisation called "Star Wars" and once again their would be no copyright violation.

Originally Posted by The test isn't whether it is merely a name, but whether the name constitutes a character that "is delineated with enough specificity so as to garner copyright protection."

Right - it's not the usage of the name, it's the usage of the creative work behind it.