Top Mud Sites Forum - View Single Post

Mason · 09-07-2002, 02:23 PM

I guess you also forgot to read #5 from your same source.

If you don't defend your copyright you lose it." -- "Somebody has that name copyrighted!"

False. Copyright is effectively never lost these days, unless explicitly given away. You also can't "copyright a name" or anything short like that, such as almost all titles. You may be thinking of trade marks, which apply to names, and can be weakened or lost if not defended.
You generally trademark terms by using them to refer to your brand of a generic type of product or service. Like an "Apple" computer. Apple Computer "owns" that word applied to computers, even though it is also an ordinary word. Apple Records owns it when applied to music. Neither owns the word on its own, only in context, and owning a mark doesn't mean complete control -- see a more detailed treatise on this law for details.

You can't use somebody else's trademark in a way that would steal the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark's good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like "mtv." :-) You can use marks to critcise or parody the holder, as long as it's clear you aren't the holder.

Moreover, from

Wincor, Book Review of Kaplan, An Unhurried View of Copyright, 76 Yale Law Journal, 1473, 1478-83 (1967)

"Fictitious characters are not "copyrights." Neither are fictitious areas, languages or battles. If Shakespeare were under copyright today, another's piracy of Falstaff might be a crucial factor in determining copyright infringement of particular plays, but Sir John is no copyright. He is something else, something without a name.

And yet not entirely without a name. The right name is "literary service mark protected against dilution." It lacks grace, but perhaps we shall coin something better after examining what likes behind it."
...
The author then goes on to describe why trademark infringement is a better cause of action than copyright infringement.

Finally, for protection to be granted to characters, they have to pass the "specificty" test. In other words, they have to be immediately recognizable and be deliniated enough so that their characteristics are clearly definable. A mud making up a storyline that happens to have a few characters in it does not meet this threshold. Mickey Mouse meets the criteria, some random dude on a mud does not.

Fan fiction is something entirely different. Fan fiction is usually an interpretation of the work or placing the work in a new setting. These are clearly derivatives. However, return to my "ogres in the shower" example. If I make a mud based completely on ogres in the shower, and I write 700 pages of themes and give all my ogres names, the fact that someone authors an area to be included in my area does not make it a derivative. Themes cannot be copyrighted. However, names of stories, characters, etc can be trademarked. That is why Lucas can come after you for having a mud named "Star Wars" regardless of whether it is about jedis, siths, the force, the rebels and the empire, or whether it is about camel racing in the amazon.

09-07-2002, 02:23 PM	#36
Mason Member Join Date: Apr 2002 Posts: 158	I guess you also forgot to read #5 from your same source. If you don't defend your copyright you lose it." -- "Somebody has that name copyrighted!" False. Copyright is effectively never lost these days, unless explicitly given away. You also can't "copyright a name" or anything short like that, such as almost all titles. You may be thinking of trade marks, which apply to names, and can be weakened or lost if not defended. You generally trademark terms by using them to refer to your brand of a generic type of product or service. Like an "Apple" computer. Apple Computer "owns" that word applied to computers, even though it is also an ordinary word. Apple Records owns it when applied to music. Neither owns the word on its own, only in context, and owning a mark doesn't mean complete control -- see a more detailed treatise on this law for details. You can't use somebody else's trademark in a way that would steal the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark's good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like "mtv." :-) You can use marks to critcise or parody the holder, as long as it's clear you aren't the holder. Moreover, from Wincor, Book Review of Kaplan, An Unhurried View of Copyright, 76 Yale Law Journal, 1473, 1478-83 (1967) "Fictitious characters are not "copyrights." Neither are fictitious areas, languages or battles. If Shakespeare were under copyright today, another's piracy of Falstaff might be a crucial factor in determining copyright infringement of particular plays, but Sir John is no copyright. He is something else, something without a name. And yet not entirely without a name. The right name is "literary service mark protected against dilution." It lacks grace, but perhaps we shall coin something better after examining what likes behind it." ... The author then goes on to describe why trademark infringement is a better cause of action than copyright infringement. Finally, for protection to be granted to characters, they have to pass the "specificty" test. In other words, they have to be immediately recognizable and be deliniated enough so that their characteristics are clearly definable. A mud making up a storyline that happens to have a few characters in it does not meet this threshold. Mickey Mouse meets the criteria, some random dude on a mud does not. Fan fiction is something entirely different. Fan fiction is usually an interpretation of the work or placing the work in a new setting. These are clearly derivatives. However, return to my "ogres in the shower" example. If I make a mud based completely on ogres in the shower, and I write 700 pages of themes and give all my ogres names, the fact that someone authors an area to be included in my area does not make it a derivative. Themes cannot be copyrighted. However, names of stories, characters, etc can be trademarked. That is why Lucas can come after you for having a mud named "Star Wars" regardless of whether it is about jedis, siths, the force, the rebels and the empire, or whether it is about camel racing in the amazon.