Copyright and Trademark Questions

[Steerpike]

If any of you have Copyright or Trademark questions, whether relating specifically to Publishing or otherwise, feel free to post them in this thread and I'll answer. I'm sure other members of the forums will provide answers as well, which is good. It is nice to have a broad range of experience to bring to bear. Of course, I should point out that nothing posted by anyone in this thread will constitute legal advice

I'm also happy to entertain Patent questions, as well as questions relating to other areas of law.

 

[Ravana]

Stuck thread.

(What Steerpike failed to mention above is that, while nothing here will constitute "legal advice," he happens to be qualified to give it.)

 

[Ankari]

Wow, I have questions:

1) I've been world building and doing so publicly (its online and the link is in my signature). My question is: should I do this?

2) I hear there are two ways of copyrighting: for website you simply put a copyright symbol versus actually filing it with the copyright office. Is the first option enough? Please keep in mind that I make frequent modifications to the website.

3) If the answer to number 2 is "its not enough" when should I submit my work to the copyright office?

4) Also, my logo is my own. I had someone make it for me and I have the contract to prove it. Do I need to trademark it?

5) Thanks.

 

[Steerpike]

1) The basic ideas encompassed in your world building are not protectable. So doing it publicly means you run the risk that someone will like an idea, use it, and there won't be much you can do about it. On the other hand, there may be reasons to keep doing what you are doing - enjoyment, exposure, feedback, etc. It really comes down to with how comfortable you are having the material out there. To the extent you have actual stories online, you're giving up First Rights, and those can be valuable.

2) Copyright automatically vests in you as soon as you put you work in a "tangible medium of expression." Thus, you own the copyright to the content on your site whether you mark it or not. You don't have to actually do anything. That said, registration is generally a prerequisite to filing an infringement action, and if you don't register soon enough after publication you give up certain damages if you ever have to enforce the copyright.It isn't really feasible to register the content of a constantly-changing site, however. I'd just mark it. If you have something important enough to you to register, then I recommend doing so as soon as you publish it.

3) See 2.

4) You may or may not own the copyright to the logo, no matter what the contract says. Copyright can only be transferred by an actual written assignment. If you don't have that, the artist who created the logo may well still own the copyright and you should ask for an assignment. The trademark is yours once you start using the logo. You build up common law rights in the geographical area in which you use the mark. A Federal Registration gives you protection nationwide. For example, if you are using a mark in California, and five years later someone uses it in Montana, you can't stop them, even if you expand into Montana. If you had a Federal Registration before they started in Montana, you could stop them once you expand there.

5) You are welcome

 

[Ankari]

Thanks for the prompt reply. I need a little clarification please.

1) I won't be putting any stories online, but that being said when an online store like Barnes & Noble allow readers to read a chapter, they author is giving up his or her right to the publication?

2) So in the world building that I am doing right now - things like magic systems, character art and description, national names and histories, and religions - can be used by someone if they want to?

3) A written assignment means that the artist grants me rights of ownership to the art? The contract states that I own the works that she made for me but you are saying I need another document that does the same thing?

4) By placing my work online doesn't that make it universal?

 

[Steerpike]

1) When you see a sample on B&N or Amazon, it is of an already published material. The author has already sold it or decided to self-publish or whatever. What I mean by giving up First Rights is that a lot of publishers or publications want to buy First Rights, and if you've already published on line you can't sell them First Rights anymore. These days, that seems to be becoming less of an issue.

2) Magic systems will be tough. Character art is copyrighted. That belongs to you. Very detailed description of characters can provide you with some room to argue if someone makes an identical character, but it isn't a sure thing. Place names won't be protectable by copyright. Your particular embodiments or descriptions of your detailed histories and religions are protected, but the underlying ideas behind them generally are not.

3) It all depends on what the contract says. Does it actually say that the artist is assigning copyright to you? If so, then OK. If it doesn't say that, then you may have left the copyright with the artist.

4) That's a tough issue. Usually, you have to have something more than just a passive site online for trademark rights to accrue in a given area. Remember, trademarks serve primarily a consumer-protection function. If you're not doing something more to use the mark as a trademark in a stream of commerce, your protection will be limited. A federal registration can help with that, but it comes down to whether you want to spend the money on it. The issue is very fact-specific and it comes down to what you are doing with the site.

 

[gavintonks]

we have a 20/25% variance here as acceptable difference on published concept which in itself is a conundrum and statue of limitations especially in the music industry before it becomes public domain - just a comment

 

[ALB2012]

Ok question

Is there anyway of proving copyright for E books- I know you automatically own the rights but if there is no physical copy is there a way of proving?

Would saving it as a PDF

 

[gavintonks]

most computers date stamp your writing and has a digital signature. pdf is just a scanned document which usually you cannot change, so the idea of authoring is proof the information is yours and you generated when you said you did. If it i in the public domain there would be a record of when it was uploaded so people who did similar things it could be said they saw your work.

However if your work was never published you cannot run around and say your idea was stolen either. An author has automatic rights to the authored work

 

[Steerpike]

Ok question

Is there anyway of proving copyright for E books- I know you automatically own the rights but if there is no physical copy is there a way of proving?

Would saving it as a PDF

It is pretty easy to fake that sort of thing (one example, you could change the date in your BIOS).

A couple of ideas:

1) you could upload the work to a cloud service where a third-party server is time and date-stamping the file as it is received;
2) you could print a copy and have it signed and dated by witnesses who would be willing to testify, if you ever ended up in court, that they saw the completed work as of the date and time indicated.

Proof of possession as of a certain date is always a fact-specific issue, so the more you can do to provide a basis for your claim, the better off you are as a rule. Within reason, of course.

 

[T.Allen.Smith]

There's also a little trick called the poor man's copyright. Print off a copy then mail it to yourself via registered mail. The way the post office handles registered mail is to seal all seams with a special tape and date stamp across those seams. Throw it in a closet somewhere once you get it back.

 

[Christopher Wright]

I hear about the "poor man's copyright" a lot, but according to Snopes it has no real legal value in the US:

snopes.com: Poor Man's Copyright

Apparently the problem is that courts won't recognize it as your work--they'll just recognize it as a copy of the work in question, with your name on it, that you mailed to yourself. "He could have intentionally placed his name on it with the intent to infringe my client's copyright," the opposing attorney will say...

 

[Benjamin Clayborne]

Register it with the U.S. Copyright Office, that being the purpose of the U.S. Copyright office.

 

[Svrtnsse]

I'm building a world and when I started it I decided that there should be hobbits in it. I've been working on it for a while, I like it and I've gotten used to thinking of my hobbits as hobbits. They're not exactly like they are in Middle Earth, but they're close enough as makes no difference at first glance.
Then I learned that the word "Hobbit" is a trademark owned by the Tolkien estate.
What kind of trouble would I get in if I got my stories from the world published without changing the name of the race? I've resigned myself to the fact I probably have to go through all I've done and change the word to something else, but I keep putting it off. I like the word and I don't really want to change it unless I have to.
Any advice or thoughts on this?

 

[Steerpike]

You're asking for trouble.

First, to be clear, you only infringe a regular trademark when you use it in a way that is confusingly similar to that of the trademark owner. So just having the mark in your story is probably OK. Having it in the title or something would be problematic.

With famous marks, you have to consider so-called blurring and tarnishment. These do not rely on a likelihood of confusion. Of course, most marks aren't considered "famous" in the sense that they get this extra protection. As far as I know, a determination has never been made as to whether "hobbit" is a famous trademark. If you got sued and it was determined to be famous, that would be problematic.

But the biggest problem you have is that the rights holders in this case are more than happy to bring legal action against people. Not long ago, they threatened a "Hobbit" pub that has been in Southampton for some time. What you have to consider is this: if they sue you and are willing to bring a trademark suit all the way through trial, it could cost you half a million dollars to defend the lawsuit even if you are right and end up winning in the end.

So, it is a risk. I think there are certainly arguments in your favor that you aren't violating any trademark. But if they sue you do you have the time and money to defend the lawsuit and prove you are right? If not, I think it would be better to change it before you publish than to be forced to go back and change it later (and maybe destroy any extant copies with the infringing use).

 

[Svrtnsse]

Thanks.
I guess it's time to try and think of a good name.

 

[071095se]

I'm not sure if this had been mentioned at all but it seems relevant. But I'd just like to put it out there that all Dungeons and Dragons monsters can be used freely EXECPT for the Beholder and Ilithid or Mind flayer of which the right are owned by Wizards of the coast

 

[Steerpike]

I'm not sure if this had been mentioned at all but it seems relevant. But I'd just like to put it out there that all Dungeons and Dragons monsters can be used freely EXECPT for the Beholder and Ilithid or Mind flayer of which the right are owned by Wizards of the coast

This isn't exactly right.

First, keep in mind that WotC identifies certain creatures as Product Identity in their licenses: OGL and GSL. When you operate under those licenses, you are agreeing, contractually, that WotC owns those creatures/terms. No one writes a novel under OGL or GSL, so what WotC calls Product Identity in its license agreements with other game publishers is irrelevant.

Secondly, there is nothing whatsoever to stop WotC asserting trademark rights over other creatures or IP of theirs, whether mentioned as Product Identity in their license agreements or not.

On a positive note, a lot of the stuff surrounding D&D is less protectable than WotC wants people to believe.

On a negative note, WotC/Hasbro has the money to make your life miserable if you use some of it and they decide to make an example of you.

 

[Benjamin Clayborne]

On a negative note, WotC/Hasbro has the money to make your life miserable if you use some of it and they decide to make an example of you.

Yeah. The saddest thing about the law is that what it says and how it is enforced in practice are not identical.

 

[Nihal]

Oh, this topic is exactly what I needed! I have a copyright-related doubt, in this case I need to decipher some legal-sounding verbiage. It can be useful for people who find their works floating on the internet.

I just stumbled with some works of mine being used in random portfolios. I contacted one requesting removal (I always request directly first), but I'm unable to contact the other, for the site seems to be incomplete and lacks contact information. So, I'll rely on the "poor man's copyright claim": I'll file a Copyright Claim to the host/registrar.

I was lucky, this one is using goDaddy. And here I my trouble starts, for I am having a hard time to understand an statement, for I've never filed a complaint to an U.S. based registrar:

To be considered effective, a notification of a claimed copyright infringement must be provided to Go Daddy and must include the following information:

1. An electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Go Daddy to locate the material.
4. Information reasonably sufficient to permit Go Daddy to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.
5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

The number one would be a link to your work—e.g. my portfolio? Or would it be, literally, an image with my signature?