Copyright and Trademark Questions

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.

 

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

 

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.

 

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.

 

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).

 

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.