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From: neilg@fraser.sfu.ca (Neil K. Guy)
Subject: Re: Copyrighted characters in adventures
Message-ID: <neilg.767731484@sfu.ca>
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Organization: Simon Fraser University, Burnaby, B.C., Canada
References: <2pj8ph$sj@tekgen.bv.tek.com> <2pjfuk$rvl@lyra.csx.cam.ac.uk> <JIM.94Apr28132816@esprit.visix.com>
Date: Sat, 30 Apr 1994 18:44:44 GMT
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jim@esprit.visix.com (Jim Edwards-Hewitt) writes: (copyright (c) 1994
Jim Edwards-Hewitt)

>It is true in the US (at least in some cases, I don't know the fine
>points).  I remember reading that the third Gallo brother (other than
>Ernest and Julio) is not allowed to use the family name to sell wine.
>(These are producers of mass-market California wines.  If you're lucky,
>you've never heard of them in the UK. ;-)

 I think there's been a bit of confusion between trademark and
copyright in this discussion. They're not the same thing. Trademarks
are words and symbols and whatnot that are owned by someone or some
company. Companies can and do invest a lot of money in protecting
their trademarks through legal action. Thus you couldn't form a
company called IBM, short for Inglebert Bartleby's Machines even if
Inglebert Bartleby was your legal name because IBM would hassle you.
The Gallo case sounds like the Gallo brothers own the trademark and
the other brother doesn't. The two brothers' firm would argue that the
other brother would be benefitting unfairly from the money and effort
they've expended in promoting their name.

 Companies go to extraordinary lengths to make their points... Dolby
Laboratories of noise reduction fame apparently litigated against
musician Thomas Dolby for infringing their trademark. (I think that
Thomas Dolby settled out of court, agreeing to go by "Thomas Dolby"
and not "Dolby" and agreeing never to make audio equipment)  And
Lucasfilm trademarked the names of the Star Wars characters in order
to protect their use. So you can't start a company called "Darth Vader
Boots" as doing so would infringe Lucasfilm's trademark. (it's weird
to see daft character names like Chewbacca the Wookie (tm) followed by
the trademark symbol...)

 Movie companies hire legions of lawyers to scour scripts of all
unlicenced references to trademarks. Steven Soderbergh once remarked
that he had to take the phrase "This conversation is loony tunes" out
of his script for sex, lies and videotape because "Loony Tunes" is a
trademark owned by Warner Bros. It gets a bit strange when a trademark
is a word or expression now in common usage, such as Coca-Cola, Xerox
or Dungeons & Dragons. You can use those trademarked names in common
speech (how could they stop you?) but you could be hassled for using
them in a published work of your own. MacWEEK magazine once got a
letter to the editor from the lawyers of the firm that owns the name
"Dungeons & Dragons." The lawyers argued that MacWEEK had used the
name to refer to a generic maze game not made by TSR Inc, and they
objected. It gets even sillier when a company trademarks a common
noun, like Apple Computer, Inc. (even more complicated in that case as
the Beatles' Apple Records have had court battles with Apple Computer.
And Apple Computer has settled out of court with McIntosh the
amplifier makers over the Macintosh (note spelling) computer name)

 Copyright is different altogether. The European tradition is that
copyright is the moral right of the author to assert control over his
or her creation. The American tradition is somewhat different. But it
essentially boils down to copyright being the legal protection of the
creative expression of an idea. Under the Universal Copyright
Convention a work of literature can be copyrighted simply by writing
it down and affixing the tag "Copyright (c) <date> <your name>" to it.
You now have copyright, assuming the work was original and not a
plagiarism. (note that you can't copyright a *name* as that's too
short. You can only trademark it)

 Big deal, though. As with many things in the legal system it doesn't
really amount to what your rights are - it amounts to who has the
deepest pockets and the slickest lawyers. My point? Well I guess it's
don't use characters and situations that you didn't invent in your
adventure games. The likelihood of facing a legal suit probably aren't
all that high (unless you try to make a game based on Jurassic Park or
Batman or Ninja Turtles or some other economically valuable commodity)
but why risk it? It's also surprising what things are public domain
and what aren't. It's true that something becomes public domain (ie:
freely copyable and distributable) 50 years (I think) after the
author's death, but legal weirdness involving estates and other legal
entities seems to mean that some stuff gets continued protection long
after the creator's demise. It may be apocryphal, but there's a
persistent rumour to the effect that some US firm claims it owns the
song "Happy Birthday."

 Anyway, as someone else has mentioned in this discussion, it's more
fun inventing your own ideas! :) Why lift someone else's ideas?

 Blah. Anyway, to cover my ass these remarks do not constitute an
informed legal opinion since I'm clearly not a lawyer. Heck, they
constitute more a collection of opinions and anecdotal remarks if
anything. Oh, and all trademarks and registered trademarks referred to
within this document are acknowledged. :)

 - Neil K. (not a trademark)

 Unless otherwise indicated all original text in this document is
copyright (c) 1994 Neil K. Guy.
