# Fair Use in Fiction



## BWFoster78 (Jan 29, 2013)

I have some ideas that I'm thinking of incorporating in a Sci Fi series, but I don't want to get sued...

1. Earthling obtains alien technology.  He needs to create space fighters to repel incoming invasion.  The technology is so advanced that the shape of the fighters really doesn't matter.  Since he's a bit of a geek, he decides to create two designs. one that looks like a Viper from the original Battlestar Galactica and one that looks like an X Wing Fighter.  If I refer to these by name, will I get sued?

2. I think I'm on less shaky ground on this one: I want to pay some homage to Perry Rhodan with the series.  To do so, I'll incorporate some plot ideas.  I think that using a generic spherical spacecraft and having them search for a planet that can give cell regeneration are both nods to the series that I can use without infringing on any copyrights.   What do you think?  Will I get into trouble by then being open about the fact that I'm doing this stuff on purpose?

Thanks in advance!

Brian


----------



## Steerpike (Jan 29, 2013)

#1. I can't see Viper being much of a problem. Lucasfilm does have a number of trademarks on the term X-WING. Just referring to them by name in the book is not a trademark infringement, however. If you had one on the cover or the name X-WING in the title, you'd be much more likely to run into trouble (in fact, X-WING in the title would almost certainly get you a letter from Lucasfilm if the book got on their radar).

One thing to keep in mind is that even though there is no trademark infringement by just mentioning the ship by name, if Lucasfilm decided to get upset over it and pursue you, it would be expensive even if you end up winning. A fair use defense is available in trademark cases, but what most people think of as Fair Use is a copyright issue, and that's not likely to be a problem here as names generally don't get copyright protection.

#2. Ideas _per se_ are not subject to copyright. I wouldn't worry about this one at all, if it was me writing it.


----------



## PlotHolio (Jan 29, 2013)

Here's a handy video on fair use. Using X-Wings in your story might be a violation of it. My advice, if you're serious about it, is to write to whoever owns the trademark at the moment (it might be Disney) and ask for permission.




To put this in perspective, Disney tried to sue the person who made this video and lost.


----------



## BWFoster78 (Jan 29, 2013)

PlotHolio said:


> Here's a handy video on fair use. Using X-Wings in your story might be a violation of it. My advice, if you're serious about it, is to write to whoever owns the trademark at the moment (it might be Disney) and ask for permission.
> 
> 
> 
> ...



I hesitate to ask permission if I'm not legally required to do so.

I guess the way I'm looking at it is that X-wings are a part of our culture and fair game to refer back to.  If I said, "Man, that spaceship reminds me of an X-Wing," it immediately conjures up an image in a reader's mind.  I'm not trying to infringe on their trademark.  By the same token, if I use an X-Wing while demonstrating that it's because the character is a Star Wars fan, I just don't feel that I'm violating any kind of trademark or copyright laws.  

If I started writing stories that take place in the Star Wars Universe and sold them, it would be wrong.  Taking something that exists in our universe and mentioning it in another doesn't seem to be the same thing.

However, my problem may be that I'm trying to apply logic to law...


----------



## Steerpike (Jan 29, 2013)

That's a copyright video (which is usually what Fair Use relates to), and so it's less on point here, where copyright is limited (if indeed there is copyright protection at all). If you were reproducing images of an X-Wing you'd have copyright issues for sure.

I think your logic is pretty sound, Brian. "The law is an ass," as the saying goes, but what you're saying works out OK. If it were copyright, then your reproduction of the copyrighted material would be enough - commercial use or sale is not needed for copyright infringement (and it doesn't preclude Fair use either, for that matter).

With trademarks, in order to infringe you generally have to use the mark in commerce in a way that is confusingly similar to the use of the trademark owner. That's why I said if you put the word X-Wing in the title you'd have more of a problem, because it starts to look more like a Star Wars book. Famous marks have a few additional protections, but if you're having a guy say "Hey, that looks like an X-Wing" it's hard to see how Lucasfilm could bring a successful case against you.


----------



## Zero Angel (Jan 29, 2013)

My understanding is the second is perfectly fine. 

I don't know about the first,although I find it hard to believe that having your setting include the fact that Star Wars and other real history happened and might have influenced people to do things in real life because of their existence be a "real" infringement. On the other hand, that doesn't mean they won't try to bully you. Also, it makes sense that Disney/Lucasfilms would have sued the character in your story.

What's your plans for the story? If you go traditional, then I can see that ending up on the cutting room floor and even if it doesn't, if it is optioned for a movie then it would be exposed to the knife once more. 

You could always do the "Hey, that kinda' looks like an X-..." "Shh! Are you trying to get me sued?"


----------



## PlotHolio (Jan 29, 2013)

Just be careful, especially if the copyright/trademark is in Disney's hands. They are infamous for starting lawsuits over tiny things.


----------



## Ireth (Jan 29, 2013)

PlotHolio said:


> Just be careful, especially if the copyright/trademark is in Disney's hands. They are infamous for starting lawsuits over tiny things.



Good advice... makes me think of the few references to Disney films in my book _Winter's Queen_. The heroine dresses up as Rapunzel for Halloween (this is quite plot-important), and refers to herself and her Fae kidnapper/fiancÃ© as Belle and the Beast or Gaston, even parodying lyrics of a song from the film in her thoughts. Would something like that get me into trouble?


----------



## Steerpike (Jan 29, 2013)

Like Plotholio said, they might decide to come after you even for something minor. If they did, it is expensive to fight even if you win. Parody is protected under the First Amendment, and from what you're saying, Ireth, I think what you've done is OK. I can't predict what Disney/Lucasfilms would do, however. Another question is whether it would come on their radar. A lot of times in these cases, as long as you aren't very successful chances are it will never come up. If you have a huge success, the chances go up dramatically. It is good to be aware of the issues, either way.


----------



## BWFoster78 (Jan 29, 2013)

Zero Angel said:


> My understanding is the second is perfectly fine.
> 
> I don't know about the first,although I find it hard to believe that having your setting include the fact that Star Wars and other real history happened and might have influenced people to do things in real life because of their existence be a "real" infringement. On the other hand, that doesn't mean they won't try to bully you. Also, it makes sense that Disney/Lucasfilms would have sued the character in your story.
> 
> ...



I'm thinking of running it by Baen to see if they're interested.  If not, I'll self publish.

In earlier books, Ringo has referred to stuff kind of tongue and cheek, like describing the X wing so there's no doubt what it is and then going, "Is that a..."  "Yep."

In a recent book, however, he's just used a trademarked term.

I don't know if that was for stylistic or legal reasons.


----------



## BWFoster78 (Jan 29, 2013)

PlotHolio said:


> Just be careful, especially if the copyright/trademark is in Disney's hands. They are infamous for starting lawsuits over tiny things.



Kinda just hate to be bullied...


----------



## BWFoster78 (Jan 29, 2013)

Steerpike said:


> Like Plotholio said, they might decide to come after you even for something minor. If they did, it is expensive to fight even if you win. Parody is protected under the First Amendment, and from what you're saying, Ireth, I think what you've done is OK. I can't predict what Disney/Lucasfilms would do, however. Another question is whether it would come on their radar. A lot of times in these cases, as long as you aren't very successful chances are it will never come up. If you have a huge success, the chances go up dramatically. It is good to be aware of the issues, either way.



Of course, if you're a huge success, you have the money to fight them...


----------



## Zero Angel (Jan 29, 2013)

BWFoster78 said:


> Of course, if you're a huge success, you have the money to fight them...



That's a couple different orders of magnitude of "huge" though.


----------



## Penpilot (Jan 30, 2013)

I know nothing about the law, but here were I think using X-Wing could get you in trouble. Let's say your book takes off. Now the term X-Wing will get associated with your creation, too. And as unlikely as it may seem, some who haven't seen Star Wars may mistakenly think you created the term X-Wing. If was Disney, I don't think I'd like that.

In the past, George Lucas was very strict in protecting his stuff. He sued a medical equipment company for naming their laser scalpel "Light Sabre" http://theforce.net/latestnews/story/Lucasfilm_Sues_Over_Medical_Light_Saber_71610.asp

But I think if you were to name your ship something else but have a character say it looks like an X-Wing once and describe it like it was an X-Wing without ever using the word X-Wing, you could get away with it.


----------



## ThinkerX (Feb 3, 2013)

Suggestion:

I recollect there being a large pile of 'extended universe' 'Star Wars' books out there, by quite a number of different authors. Check the 'copyright' page at the front of those involving X-Wing fighters and see if there is any special mention of them ('used with permission' or some such).


----------



## Kevin O. McLaughlin (Feb 4, 2013)

In my Starship serial, I have an AI named Majel (as a nod to Gene Roddenberry's wife, who did the voice for the Enterprise computer). No infringement; it's an uncommon but not unique first name. Anyone who's not something of an SF geek won't get it; the ones who do won't be offended.

I also have this little bit:


> “Morning, John. What did you decide to name her, anyway? You never told me.”
> “He never told anyone,” Charline said, rolling her eyes.
> “I'm keeping it a surprise,” John replied.
> Dan cocked an eyebrow. “You're not naming it...”
> ...



This is OK use. It's a cultural reference. You can write about characters sitting down to watch Star Wars, or eating a bag of Doritos. (Caveat: if your bagged snack is poisoned, make up your own brand - using a trademarked name in a manner which could harm the reputation of that brand CAN get you sued. Likewise, if your bad guy runs a big online retail store, DON'T make it Amazon. Make up a new company. Defamation == bad!)

Now, trouble with the x-wing name is that it's trademarked. It's not copyright law you're worried about. It's trademark law. If you make a cultural reference ("He'd been a Star Wars fan all his life. Of course he built fighters that closely resembled the X-Wing he remembered from his youth. They had always been a symbol of heroism, to him.") then you're very likely OK. You might get sued anyway, but you probably won't, and odds are decent you'll win if you do (IANAL - go ask one!). (As for legal fees, there are a LOT of lawyers who take these sorts of cases on pro bono. The ACLU is hot about these cases, too.) Don't CALL the fighters x-wings. But comparing them to an x-wing is probably going to be OK.

BTW, Rapunzel and Beauty and the Beast both existed a LONG time before Disney got to them. The basic stories are long since out of copyright. You can rewrite and publish your own version of an old fairy tale without any issue. Watch out on music lyrics, however - I am unsure exactly how much of a lyric you can quote without permission, but it's not a lot.


----------



## Ireth (Feb 5, 2013)

Kevin O. McLaughlin said:


> BTW, Rapunzel and Beauty and the Beast both existed a LONG time before Disney got to them. The basic stories are long since out of copyright. You can rewrite and publish your own version of an old fairy tale without any issue. Watch out on music lyrics, however - I am unsure exactly how much of a lyric you can quote without permission, but it's not a lot.



Well, I was strictly aiming to use the Disney Rapunzel version, as the cast-iron frying pan she uses becomes an important tool for my heroine when she meets the bad guy, a Fae, and has to fight him off. As for the Beauty and the Beast parody, I think I might be safe -- the parody is only two lines long. I take this verse:



> Madame Gaston, can't you just see it?
> Madame Gaston, his little wife!
> No sir, not me, I guarantee it!
> There must be more than this provincial life!



...and tweak it thusly:



> [...]
> Queen Ariel, his little dove!
> [...]
> There must be more than marriage without love!


----------



## Kevin O. McLaughlin (Feb 5, 2013)

Check in with a lawyer on the lyrics if you're worried about it, Ireth. If you're submitting to a publisher, they will likely know the answer (and have you edit those lines to be legal, if they're not). Sorry - I haven't used song lyrics in a book, so it's not something I've researched and I don't feel comfortable giving advice on this one...!


----------



## Zero Angel (Feb 6, 2013)

Anybody see this related blog: haikujaguar.livejournal.com/1208235.html, "In the Future, All Space Marines Will Be Warhammer 40K Space Marines"?

I feel that this use of a trademark is an overreach, and its absurd when someone trademarks, patents or copyrights something that has been around for so long. Still, with trademarks at least, I feel that the guy's case is winnable--too bad he can't afford it.


----------



## Steerpike (Feb 6, 2013)

Zero Angel said:


> Anybody see this related blog: haikujaguar.livejournal.com/1208235.html, "In the Future, All Space Marines Will Be Warhammer 40K Space Marines"?
> 
> I feel that this use of a trademark is an overreach, and its absurd when someone trademarks, patents or copyrights something that has been around for so long. Still, with trademarks at least, I feel that the guy's case is winnable--too bad he can't afford it.



This gets back to what I was saying, above, about not putting the term in a title.


----------



## Kevin O. McLaughlin (Feb 7, 2013)

Steerpike said:


> This gets back to what I was saying, above, about not putting the term in a title.


Very different animal here.

"X-wing" used in reference to a space fighter with an X shaped cross section, is an invention of George Lucas, for Star Wars.

"Space Marines" is a standard SF trope dating back almost a hundred years.

Lucas dropping the hammer on someone for making X-wing books about space fighters is legitimate use of trademark law.

Games Workshop trying to shut down an indie writer - because they know DARNED WELL if they go after the dozens of other publishers with works out there using the term "space marine" they're going to lose - is cowardly corporate bullying at its finest.

Luckily the interwebs are already alive about this one, and I suspect that the book in question will be available again before too long.


----------



## Kevin O. McLaughlin (Feb 7, 2013)

That sort of BS makes me want to write Space Marine books, gotta tell you.


----------



## Steerpike (Feb 7, 2013)

Kevin O. McLaughlin said:


> "Space Marines" is a standard SF trope dating back almost a hundred years.



This isn't really relevant. GW already has at least two U.S. trademark registrations for "Space Marine" and more than that in the EU. The age of the term as a trope has little bearing on its use by GW as a trademark for games or books, unless other publishers were previously using the term as a trademark and not just within their text. The word "tor" is an english word that appeared in plenty of books long before the publisher "Tor" came around, but if you were to use Tor as a trademark for books and as your defense claim it is a commonly-used word in books, you'd lose.

GW doesn't have a U.S. registration for books, so they may be looking at more of a battle in the U.S. (though I wouldn't be surprised to see them file for it now and try to get it), but they can make an argument even on common law rights.

It's a completely different animal at all, though there are differences (not the least of which are in the likelihood of confusion analysis between the two). GW is getting bad PR, though, and maybe they'll re-think this approach.


----------



## Zero Angel (Feb 7, 2013)

Steerpike said:


> This isn't really relevant. GW already has at least two U.S. trademark registrations for "Space Marine" and more than that in the EU. The age of the term as a trope has little bearing on its use by GW as a trademark for games or books, unless other publishers were previously using the term as a trademark and not just within their text. The word "tor" is an english word that appeared in plenty of books long before the publisher "Tor" came around, but if you were to use Tor as a trademark for books and as your defense claim it is a commonly-used word in books, you'd lose.
> 
> GW doesn't have a U.S. registration for books, so they may be looking at more of a battle in the U.S. (though I wouldn't be surprised to see them file for it now and try to get it), but they can make an argument even on common law rights.
> 
> It's a completely different animal at all, though there are differences (not the least of which are in the likelihood of confusion analysis between the two). GW is getting bad PR, though, and maybe they'll re-think this approach.



At the same time, they have to defend the trademark or lose it, right? How does Starcraft get away with their space marines? Do they just call them marines in space? 

I kinda' think "space marines" as a trademark is insane.


----------



## Steerpike (Feb 7, 2013)

Zero Angel said:


> At the same time, they have to defend the trademark or lose it, right? How does Starcraft get away with their space marines? Do they just call them marines in space?
> 
> I kinda' think "space marines" as a trademark is insane.



Just saying "space marines" in a work isn't trademark infringement. You have to be using it as a trademark. If Blizzard started calling their game Space Marines instead of Starcraft, they'd have a problem. But there's no reason they can't refer to 'space marines' within the game, just like there is no reason you can't refer to 'space marines' in a novel.

And yes, generally a trademark owner has to enforce or defend their rights or risk losing them.

GW does not have a slam dunk here. I think it would survive Summary Judgment if they filed an infringement claim. If a representative of GW came into my office with this one, I'd tell them they had enough that I could file a complaint for trademark infringement with on a good-faith basis. I'd also tell them they're going to have a hard time on likelihood of confusion and that it might be a PR problem for them.


----------



## ThinkerX (Feb 7, 2013)

Hmmm...if I'm following Steerpikes argument here, then this would be safe:

TITLE: 'SPACE BATTLE FOR PLANET YX'

with occasional mention of 'space marines' and 'x-wing fighters' in the text, especially if tweaked from the original (female space marines, and X wing fighters with a crew of ten and rotary gun turrents)

NOT SAFE:

TITLE: 'SPACE MARINES AND X WING FIGHTERS DUEL FOR PLANET YX'


----------



## Zero Angel (Feb 7, 2013)

ThinkerX said:


> Hmmm...if I'm following Steerpikes argument here, then this would be safe:
> 
> TITLE: 'SPACE BATTLE FOR PLANET YX'
> 
> ...



I think the gray area is when people start talking about "that cool book with the x-wings and space marines". But I just wonder about using those images for advertising. I'm not a lawyer, but I would think using those things in advertising would make it infringement / count as a commercial use.


----------



## Kevin O. McLaughlin (Feb 8, 2013)

"Space Marine" is  set of words describing an well known thing. It's a little like trying to trademark the word "werewolf" and then saying no one can ever use "werewolf" in the title of a book again. (And yes, I am aware that such abuses of the system have been attempted before.) Like "werewolf", "space marine" is a long existing fictional thing with a common definition.

Trademarks stop working when they become terms in common use: which is why Xerox and Kleenex work so hard to keep their brand names from becoming a common term. Trademarks of words with an already existing common meaning are dead at registration - they're indefensible for the same reason that "zipper", "thermos", and "aspirin" are - the words become common use.

They can register the trademark. But they're not going to be able to defend it.

(In other news - after Doctorow, Scalzi, Stross, the EFF, and a few other people hopped on board denouncing Games Workshop in a massive blog and twitter beatdown, Amazon restored the book. It seems to be selling VERY well right now. Better than any of the Games Workshop space marine novels, which has a certain poetic justice to it...)


----------



## Steerpike (Feb 8, 2013)

Kevin, you are leaving out one of the most important factors, which is the nature of goods or services. "Apple" is a common word describing a fruit and would not be protectable as a trademark for apples. It works perfectly well and gets a good deal of protection in relation to computers. Likewise, with "Space Marine," it can be protected in relation to something like RPGs (which GW has also sought to do), and it certainly isn't a generic term for books. The questions I have about it relate to whether GW has actually used it as a trade mark in relation to fiction, and also whether there is any likelihood of confusion between GW's books and the book in question in the current dispute. As to the latter, I'd say no.

Also, keep in mind that a registered trademark carries a presumption of validity in court, and after five years of consecutive use can be incontestible.


----------



## Kevin O. McLaughlin (Feb 8, 2013)

Steerpike said:


> Also, keep in mind that a registered trademark carries a presumption of validity in court, and after five years of consecutive use can be incontestible.



Except on the basis that it was or has become a generic term.

With hundreds of examples of generic use stretching back over 80 years, I think that it's about as easy to defend this copyright as it would be to defend "dragon", "werewolf", or "vampire".

A company can trademark the word werewolf; but they would have a very, very hard time defending that trademark because it has an generic meaning which predates the trademark use.

(This is my rough understanding, mind; I'm very good with copyright law, so-so with trademark law, and useless when it comes to patents. )


----------



## Steerpike (Feb 8, 2013)

Kevin - yes, genericism kills the mark, with the caveat that it has to be generic for the goods and services at hand. I could register the mark "werewolf" for, say, cell phone services with no problem whatsoever. Its generic meaning bears no relation to my use of it as a cell phone carrier. If I tried to register it to sell werewolves, I'd have a big problem 

Patents are where I'm best. Probably makes up 80% of what I do. So if you have questions...


----------



## ThinkerX (Feb 8, 2013)

> Patents are where I'm best. Probably makes up 80% of what I do. So if you have questions...



My understanding is that glaciers move faster than patents. 

Unless a lot of (major corporate) loot is involved....


----------



## Steerpike (Feb 8, 2013)

With a patent you're looking at around 2 years to the first office action, and 3 to 4 years to get it issued (sometimes more). Corporate money doesn't actually help the process. You can request expedited examination if you pay for it and meet the requirements, but generally whether you're Apple or a guy in his garage, your patent application goes into the queue at the patent office and is examined in the order received.


----------

