Add Easter Eggs in story—is this legal?

Discussion in 'Writing Discussions' started by Writer’s_Magic, Jun 10, 2018.

  1. Writer’s_Magic

    Writer’s_Magic Mystagogue

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    The book, which I’m reading at the moment, Ready Player One has many Easter eggs. But is this allowed? I mean, in another book—I believe it was The trails of Apollo, or so?— I read made a Guardians of the Galaxy Easter egg. The author made a joke about Groot. Can someone explain to me if it legal to do this?
     
  2. Orc Knight

    Orc Knight Grandmaster

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    Ready Player One is pretty much a lot of Easter Eggs in one go, given it's particular content. And it's not unusual for them to have them or shout outs to popular or well known other media and stories. Even the likes of G.R.R. Martin has such things. And as Easter Eggs, they're generally supposed to have to look for them to find them. Not sure what the legal status of it is, but I don't think little mentions get one in trouble unless someone is particularly sue happy.

    Either way, it happens a fair bit.
     
  3. Consultant_Timelord

    Consultant_Timelord Journeyman

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    I'm pretty sure it is legal because you're not claiming to have written these works, or changing them in any way. Essentially you are just giving free publicity to whatever it is you're referencing.
     
  4. Devor

    Devor Fiery Keeper of the Hat Moderator

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    Usually it's fine, but it depends. You would probably get in trouble if you actually featured Groot in your story. But characters, including the narrator, are able to reference him. And you could have a similar character named Broot, for example... if done very sparingly. The main rule (which isn't really the rule but what the actual rules usually come down to, so this is the simplified guideline not the technicalities) is that you can't make money using someone else's intellectual property. You're allowed to reference, and to parody, and to use almost the same idea.
     
    Laurence likes this.
  5. Garren Jacobsen

    Garren Jacobsen Dark Lord

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    DISCLAIMER: I am an attorney. I do not practice IP law. This is all from my own off-time studying. Also, I am not your attorney. This is not legal advice. This is purely for educational purposes. If you have a specific legal problem regarding the below, find an attorney that practices in your jurisdiction (likely it ain't gonna be me). This forum post is not a comprehensive review of the applicable law. This is a 30,000 foo30,000-footto answer your question.

    So, here's the skinny. Characters are an author's property, their intellectual property (hereinafter "IP"). There are three ways to protect IPs: 1) copyright; 2) trademark; 3) patents. Patents don't apply as they protect inventions and crap. Trademarks don't apply to this situation as they apply to branding. (Just look up cockygate to understand this point.) That leaves us copyright.

    So, when do you have a copyright and what does it cover? A copyright covers any original writing, TV show, movie, etc, that is any fixed tangible medium invented now or in the future. 11 USC § 102. An author as exclusive rights to the following:

    "(1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;

    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

    11 USC § 106.

    When is your copyright infringed upon? Anytime someone does any of the above. This is a sliding scale of an issue. Mentioning Groot, Iron Man, Mickey, Darth Vader, etc. Doesn't violate the copyright holder's rights to these characters. Now, putting them in the story almost certainly does. However, there is a safe harbor provision: fair use.

    What is fair use? It is a limitation to the exclusive rights of the author. Now, when does it apply. No one really knows. But some things that courts look at.

    "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (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; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work."

    11 USC § 107.

    This section of fair use requires a whole post unto itself, but I won't bore you with the details. It is entirely possible to have a character in a book if it meets the standard of fair use, but I wouldn't want to risk it. This fair use analysis is loose and a pain to deal with.

    What does it all mean?

    You can mention characters and books and things all you want and not violate copyright laws. Putting in characters is problematic. Don't do it, unless you get a license from the copyright owner to do so.
     
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