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Copyright and Trademark Questions

Discussion in 'Publishing' started by Steerpike, Mar 7, 2012.

  1. Devor

    Devor Fiery Keeper of the Hat Moderator

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    I'm fairly sure they just want the email to come from an account registered to the copyright holder. But esignature can mean a few different things, so I would poke around the website a bit. It's okay to email them and ask if you're really not sure.
     
    Last edited: May 7, 2013
  2. phaze112

    phaze112 New Member

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    My trademark question is pretty basic. I am starting a hunting/fishing knife company and did the research on the uspto.gove site. No live matches came up, however on amazon I see a company that makes knives/fishing tools using a name that is very similar to the company name I want to use (different by one letter, E and not a U).

    They appear to not have the name trademarked, as it doesn't come up on the uspto.gov trademark search.

    If I I trademark the name, would I have full rights to it even though this other company has been in business for what seems like 5+ years.


    Or does length of business pull some type of weight.

    thanks for the help!

    I'm in the United States by the way.
     
    Last edited: May 15, 2013
  3. Steerpike

    Steerpike Felis amatus Moderator

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    If the company has been using it, they'll have some common law trademark rights. If you file for a federal registration, their use might be cited against you by the trademark examiner. If you manage to get the registration, you'll have nationwide priority except where this other company has already been selling. For example, if they're selling in Maine, then you can never go into their territory in Maine with any trademark priority even though you have the federal registration and they don't.

    It's safer to pick a non-similar name, both because of the priority issue and because the USPTO may well cite the other company's mark against you. It's not impossible to get the mark you want, but it won't be as valuable to you as one that gives you clear nationwide rights.

    That's my view on it.
     
  4. Svrtnsse

    Svrtnsse Staff Article Team

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    I'm using a wiki site from wikia.com to put up stories I've written on the web. Edits on the wiki are licensed under the CC-BY-SA license (Creative Commons — Attribution-ShareAlike 3.0 Unported — CC BY-SA 3.0). Copyright on wikia wikis is explained in slightly more detail on Help:Copyright - Wikia Community Central

    From what I'm reading from the above links I'm "free to make commercial use of the work". I'm thinking that once I have enough material I'll compile it into an ebook and sell it on Amazon (for cheap). Is that something I'd be allowed to do, or am I missing something and I could get into trouble for doing that?
    The stories in question would be on protected pages meaning only people with admin rights on my wiki (which is just me) are able to edit them.
     
  5. Breezybealle

    Breezybealle Dreamer

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    I was wondering how to determine whether something you find on the internet is publishable or not. For example, I am in a forum that someone has posted a writing prompt that I find appealing. Within the forum guidelines, it specifically states that it is "public domain" and that all ideas/info/etc... written in that particular forum are up for grabs to be used in any way, shape or form by anyone for anything. If I were to publish a book and wanted to use a specific writing prompt or two, how do I discern whether I have the right to do so without breaking any rules? Do I even need to credit anyone? Do I need to credit the website itself? The author of the forum thread? Or can neither be done even though it states that anything written in that particular thread is free to use?
     
  6. Sia

    Sia Sage

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    I see those creative common license things around all the time. Do they have any legal weight or are they more of a 'I wish you would/wouldn't do this?" To be frank, though, I really don't care about anything beyond credit and keeping my babies far away from pay sites.
     
  7. Graylorne

    Graylorne Archmage

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    A small trademark question: In my Dutch books I'm translating in English, the dead grandfather of my MC was a king with the nickname (in Dutch) Man-van-Staal, what not surprisingly translates as Man-of-Steel, because he was a knight and a great warrior. His name is mentioned once or twice in the first 2 books, and that's all. I can't imagine infringing any trademark rights or anything. I hadn't even connected the two, as comics aren't exactly a big thing in NL (except for Donald Duck), until somebody mentioned it. Any advice?
     
  8. Steerpike

    Steerpike Felis amatus Moderator

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    This isn't necessarily true, whether the forum says it or not. If you want to use something created by someone else, contact the author. If it is something as small as a writing prompt, you probably don't need to do that, though attribution is always appreciated.
     
  9. Steerpike

    Steerpike Felis amatus Moderator

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    Yes, if someone releases something under a creative commons or "open" license of some kind, it has legal weight. That's an option that a copyright owner can take.
     
    Svrtnsse likes this.
  10. Steerpike

    Steerpike Felis amatus Moderator

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    Mentioning his name in the books like that isn't likely to cause you any trouble, Graylorne. You're not even using it as a trademark. If you put "man of steel" on the cover or in the title, you might have a problem.
     
  11. Graylorne

    Graylorne Archmage

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    No, it's in quite a different contaxt, too. Thanks, Steerpike. I'll leave it in.
     
  12. Paladin

    Paladin Dreamer

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    Seeking advice about protecting my ideas/IP

    Edit: As the thread title states, I'm looking for actual, detailed advice, not yes/no lists. If you're going to answer my questions, please do elaborate and leave some detailed answers that both answer my questions as well as give me some advice about how I should proceed. What I should do now and what I should do later. Do I need a trademark? Do I need to form a company before I start releasing anything? When it comes to protecting a fantasy world IP, how would I go about getting a copyright on something like that? It's obviously quite different from simply copyrighting one story, since a world concept is always changing and I can imagine the laws would work a bit differently. Etc. etc. Please describe the plan you think I should follow to have the best chance of protecting my IP. Both in my own country and abroad. Thank you for your time.

    Edit: I realize I'm talking a lot about video games and RPG's in this thread and I'm not sure how much that medium is discussed or accepted on mythicscribes. However, I feel my questions are still relevant for these forums since I would like to have novels and graphic novels which use my IP as a setting as well.

    Edit: I understand that no advice given on these forums constitutes as professional legal advice. I'm just looking for casual advice and direction from those with experience. However, if anyone with the credentials and experience would like to offer their professional services as a legal consultant, please feel free to PM me and let me know how I should contact you outside the forums. If this sort of request isn't allowed on the forums, I apologize and will ask that it please be disregarded then. If need be, a mod can edit the above request out or ask that I do so.


    Hello, I'm an amateur game dev and fiction writer who's been working, in my spare time, for some years now on developing some games. Classic RPG's mostly. I feel like I'm reaching a point where I may be ready to start releasing some games beyond my close circle of friends.

    I've spent several years developing a very detailed and immersive fantasy world which I use as the setting for my games and stories.

    So, this brings me to my dilemma...

    I'm very protective of my ideas and IP, as most writers and artists would be. I've put years of my life into it. So, I'm very concerned about releasing games/stories (some of which may be free) and having my ideas/IP stolen.

    I realize good ideas are pretty easy to come by and there's 7 billion other people out there that may (and probably are) better at world building, writing and game design than me... and that I probably don't have too much to worry about realistically. However, this doesn't ease my fears in the slightest. I'm just a writer that wants to tell my stories and share my world with others while using a medium I highly respect... without some larger company or random scam artists coming along and stealing it all away from me.

    I do plan to always fully manage every aspect of my rpg projects and stories myself. I will always self publish, I have no plans to ever sell or sign any of my rights to my IP, games or stories away.

    I currently live in the U.S. but my game releases would probably be mostly digital downloads online. As for stories, I may go through a self publishing company or simply publish them online somehow or as e-books.


    My Questions:

    1. How should I go about legally protecting my IP and my stories and characters in general and for the long term?


    2. What should I do in the short term to protect my IP before I start releasing games or stories that use my IP as a setting?


    3. In preparation for worst case scenarios, how should I go about making sure my IP is protected from team members or contractors who may work with me for a while then decide to take my ideas and run?


    4. Is my IP always legally separate from any art, music or programming I hire someone else to do for the games or stories? Is there any way that an artist or programmer can legally argue that they hold some legal rights to my IP because they supplied art, music or programming skills to it? If so, is there any way to avoid this trap?


    5. Since I would be releasing games for download online... is it possible that someone from some other country could try to steal the rights to my IP and get away with it because of different laws? If so, is there any way to prevent this?


    6. Do I really need to hire or consult with a lawyer or some sort of legal consultant about this first? If so, what sort of legal professional should I look for?


    7. Anything else I should know about the legalities of IP ownership or watch out for? Helpful advice is appreciated.


    I know some of these questions are probably pretty basic but I'd be the first to say that I'm a writer not a lawyer. I wouldn't be asking legal questions in the first place if I knew anything about this. So I would really appreciate some helpful answers and advice.


    Thanks for the help!
     
  13. Devor

    Devor Fiery Keeper of the Hat Moderator

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    Paladin, I'm merging your post into Steerpike's Trademark thread to make sure that he sees it. You should also refer to the other posts in the thread, as some of your questions may have already been answered.
     
  14. psychotick

    psychotick Auror

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    Hi,

    Sorry - a bit slow here. What exactly is an IP?

    Cheers, Greg.
     
  15. Feo Takahari

    Feo Takahari Auror

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  16. Paladin

    Paladin Dreamer

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    Thanks.

    I did read through this thread before posting but I felt like, while some similar questions were asked, most of my questions were different enough that I should ask them.

    It seemed like this thread hadn't been updated in a year though so I thought I should make my own. I hope my questions won't go overlooked here.
     
  17. Steerpike

    Steerpike Felis amatus Moderator

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    I'm workin on an answer to the specific questions now, and will have it posted shortly. Before doing that, I want to point out that if you're seeking protection for your "ideas" as general concepts, you're pretty much out of luck. You can't protect those. It is your specific development and expression of the ideas that gets protection, but you can't stop someone else from using the same concepts and ideas as you.
     
  18. Devor

    Devor Fiery Keeper of the Hat Moderator

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    It may take a few days but you'll get an answer.

    I'll quickly answer one question, though:

    4 - Anyone who works on your IP needs to agree to a relatively simple contract stating who owns which rights to the work being created. Typically, you would want to ask for full rights but give the artist permission to use it in their personal portfolio (which is often online). But anything can be negotiated, including "non-exclusive rights," or permission to let the artist use it for "non-commercial" activities (which go beyond portfolios), or a "reversion clause" which returns the rights to the artist, for instance, if you never complete the project.

    If you use a freelancer site like Fiverr.com, most artists will state that they'll charge you extra for copyrights. If you don't pay the extra, you can't use it for commercial endeavors. Independent freelancers with any experience probably have their own version of the contract, which only needs to be about a page or two or less. If you google something like "artist copyright contract" you can find samples to use and put one together yourself.


    ((and he ninja'ed me . . . .))
     
    Last edited: Jul 4, 2014
    Paladin, TWErvin2 and Steerpike like this.
  19. Steerpike

    Steerpike Felis amatus Moderator

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    NOTE: Unless I specifically say something about another country, everything below applies to the U.S.

    1. How should I go about legally protecting my IP and my stories and characters in general and for the long term?

    Your stories are protected by copyright as soon as you create them. To enforce those rights, you generally need to register the copyright, and you should do that quickly after publication or you lose a lot of rights. That's the best way to protect the stories. Characters can get copyright protection, but it is a lot more limited in terms of when it kicks in and the extent of coverage you get, and it usually depends heavily on how well defined your own character is. You can't just have a fighter named Dirk who does a walk-on in a scene and expect to cover that as a character. Character names may be protected by trademarks, if you're using them that way. Also, any character artwork is protected by copyright and possibly also trademarks. If you have important trademarks you want to protect, you should register thsoe as well.

    2. What should I do in the short term to protect my IP before I start releasing games or stories that use my IP as a setting?


    If it makes sense to spend the money, you can register any copyrights or trademarks in the IP before you go public with it. How much you do in this regard depends on how much you want to spend.

    3. In preparation for worst case scenarios, how should I go about making sure my IP is protected from team members or contractors who may work with me for a while then decide to take my ideas and run?


    It is easier with team members or contractors. Always use a contract. Always have them acknowledge that the IP they are working on as part of their work belongs to you. Get copyright assignments.

    4. Is my IP always legally separate from any art, music or programming I hire someone else to do for the games or stories? Is there any way that an artist or programmer can legally argue that they hold some legal rights to my IP because they supplied art, music or programming skills to it? If so, is there any way to avoid this trap?

    Copyright vests in the "author" or creator of a work. If you hire someone to create art, for example, then the general rule is that they own the copyright in that art, even though you're paying them to create it. There are exceptions under the work-for-hire doctrine that are beyond what we want to get into here. The good news is that this is a very easy trap to avoid - just get a written copyright assignment from every person who creates for you.

    5. Since I would be releasing games for download online... is it possible that someone from some other country could try to steal the rights to my IP and get away with it because of different laws? If so, is there any way to prevent this?

    If your work becomes popular, it is not only possible but likely that it will be downloaded in other countries, and that people there might want to use it. For countries that have little or no IP protection, there is nothing you can do to prevent this absolutely, and nothing you can do about it once it happens. For other countries, it comes down to how much you want to spend. Say someone in Australia, China, and India is vioalting your copyrights. You have to go through whatever formal registration processes these countries require (if any) and then hire law firms in each of these countries to take action against the infringers (assuming they can find them). For many people, it is simply too expensive to enforce a lot of foreign rights. I had a client who had to enforce a trademark against knock-offs in three different countries, and in his case it was a pretty straightforward deal. He spent around $10,000 enforcing his IP. If you get in situations where you have to go all the way to trial to enforce rights, you are looking at tens or hundreds of thousands of dollars per case.

    You have to resign yourself to the idea that you are not going to be able to absolutely prevent this, and in a lot of cases even if you can prevent it the cost isn't going to justify it. Within the U.S., you can use DMCA takedown procedures, and some foreign jurisidictions may have similar processes, but if you have to actually go to court against an infringer you're looking at a substantial financial investment.

    6. Do I really need to hire or consult with a lawyer or some sort of legal consultant about this first? If so, what sort of legal professional should I look for?

    For some of what you've mentioned, you should talk to an Intellectual Property attorney. The trademark registrations, for example. For copyright registrations and things like DMCA takedowns, you can probably do it yourself. For contracts with other who are contributing to the project, it makes sense to consult an IP lawyer to make sure they're written properly and enforceable.

    7. Anything else I should know about the legalities of IP ownership or watch out for? Helpful advice is appreciated.


    I'd concentrate on commercializing and promoting the IP. You definitely want easy protections at the outset - copyrights, and trademarks that are particularly important. If you think you're going to protect broadly against people using similar concepts, or that you're going to reach out around the world and either prevent piracy or infringement, or put a stop to it once it begins, you're going to be disappointed. It's a matter of looking at what is most important, and what is realistic, and building a strategy around that.
     
  20. Steerpike

    Steerpike Felis amatus Moderator

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    Yep. All good advice. My preference is to get copyright ownership for everything. Some artists won't go for that, and then my advice is to find different artists :)
     
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