07-23-2003, 09:23 AM | #21 |
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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: 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. |
07-23-2003, 10:50 AM | #22 |
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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. 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. |
07-23-2003, 12:37 PM | #23 |
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Kylotan:
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. 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 |
07-23-2003, 06:24 PM | #24 |
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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.
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07-23-2003, 06:57 PM | #25 |
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I wrote:
Mason wrote: 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. |
07-23-2003, 07:15 PM | #26 |
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KaVir:
(responding to Mason, and supplying a link to an FAQ) 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 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 |
07-24-2003, 12:31 PM | #27 |
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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.
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. 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. |
07-24-2003, 01:42 PM | #28 |
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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).
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07-24-2003, 02:05 PM | #29 |
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KaVir:
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. 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. 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 |
07-24-2003, 02:16 PM | #30 |
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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.
Right - it's not the usage of the name, it's the usage of the creative work behind it. |
07-24-2003, 02:26 PM | #31 |
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I stated "Copyright does not protect names, titles, slogans, or short phrases". The FAQ states "Copyright does not protect names, titles, slogans, or short phrases". I'm not quite sure how I can read it any more clearly than that...
I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot. That would not be a copyright violation. There is nothing stopping me from writing a childrens story about Kirk the dog and Spock the cat, and their adventures on a farm in the countryside. ...comes up with 9,580 hits on a google search, and is not a copyright violation. Things like a document entitled "Help Your Pet Live Long and Prosper: Why a Natural Diet is Better" is hardly a copyright violation. |
07-24-2003, 02:45 PM | #32 |
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The background and development of the character is a factor as to whether or not a name is eligible for copyright protection. Most names will not receive copyright protection, but some of them do.
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07-24-2003, 03:06 PM | #33 |
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Just because something is entitled to copyright protection does not mean mean that every instance that closely replicates it will be an infringement. The same thing applies with trademark law. (That is why two separate trademarks can have the same name (i.e. Delta Faucets and Delta Airlines)). Further, some of the instances you propose might fall under fair use exceptions.
Whether or not something qualifies for protection does not necessarily mean that every usage will result in infringement, and I think you are confusing the arguments. |
07-24-2003, 04:38 PM | #34 |
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Me:
KaVir: Well, for starters, you don't seem to have looked at the question part yet- the question asks how you would go about obtaining protection for a name, phrase, etc. The answer, when kept in context with the question, doesn't say what you're representing it to have said. Ok, you could quibble that they could phrase the answer better, but it's an FAQ, not a statute. The rest of us seem to have instantly grasped what it meant. Mason's cites to the contrary? Which, if true,doesn't prove that "Spock" and "Kirk" have no protection regarding some uses, as Mason points out. Giving an example of a case in which protection may not be applicable doesn't disprove the existence of that protection. Likewise your attempted rebuttal of my "live long and prosper" example. Stilton |
07-24-2003, 05:33 PM | #35 |
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Once again I reiterate, the names do not receive copyright protection. Ever. It is the characters that receive such protection.
In the first cite Mr Anderson's Rocky IV treatment was treated as an unauthorised derivative work under 103(a) because it was based on a character, which was considered to be a copyrightable work. In the second cite it was ruled that several Disney comic characters were protected by copyright. I never claimed that a character couldn't be protected by copyright law (because quite obviously it can). What I said is that a name cannot be protected. And it cannot. The protection extends to the characters, not the names. Names are not protected by copyright law. Names are protected by trademark law. I have stated this repeatedly. I have provided references to the Copyright Office website, in which it states "Names are not protected by copyright law". It's even listed as one of Brad Templeton's 10 Big Myths about Copyright. I really can't see what there is to argue about. |
07-25-2003, 12:11 PM | #36 |
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KaVir:
I have no problem with what you're saying now. But your first post in this thread was simply: KaVir: The only reason I can imagine that you would have posted this is because you thought it was relevant to whether the ad we were discussing was an acceptable use of the material. Specifically, it seemed that you were saying that using a name or phrase was necessarily acceptable because "Copyright does not protect..." Is that not what you were intending to say? If so, has your position changed? If not, what was the original post in reply to and what were you attempting to point out? Stilton |
07-27-2003, 06:37 AM | #37 |
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Copyright protects a creative work. However just because you use a specific name within that work doesn't mean that that name cannot be used elsewhere (unless there is a trademark). Equally, just because someone uses a short phrase which is similar to one of yours, it doesn't mean that that is a copyright violation.
I never changed my stance throughout this thread. It was other people who implied that I was saying something else (aka "straw man"), specifically that I was claiming a character could not be copyrighted. The point I have been making was purely in reference to the names themseves, and to short phrases. Note that your above quote is exactly the same as . Do you consider yourself to have violated this other poster's copyright? If not, why do you feel your case is different to that of the original poster? |
07-28-2003, 12:50 PM | #38 |
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KaVir:
Then your first post is one of: 1) citing an FAQ as evidence that the ad is infringing 2) citing an FAQ as evidence that the ad is NOT infringing 3) something else. Which is it? (If (3), please explain) It certainly seemed to me that (2) is what you were attempting to do, and I believe that Mason and I have provided sufficient guidance on this point. (his URL refers to a usenet post using the phrase "I have no problem with what you're saying now.") I'd like to think that you can see the difference between "May the force be with you," an almost universally recognized reference to Star Wars that brings to mind an epic story by it's utterance, and a sequence of words like "I have no problem with what you're saying now," which has no significance beyond its literal meaning for the vast majority of people who read it. Stilton |
07-28-2003, 06:04 PM | #39 |
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Yes, 2 is what I am attempting to do, and I have already explained why Mason's post addressed something completely different (aka "straw man", references available upon request). Your points didn't really address anything at all as far as I could see.
As far as copyright is concerned, I'd like to think that you'd realise there is absolutely no difference what so ever. The question still stands. |
07-28-2003, 08:48 PM | #40 |
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