This is topic Trademark/ Copyright Issues in forum Discussions About Orson Scott Card at Hatrack River Forum.

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Posted by scottneb (Member # 676) on :
If, when reading a book and a character comes in, my mind puts a Trademarked character in his place, do I have to pay the holder of the Trademark?

What about the writer of the original character? Do I owe him damages? Did I defame the character?

Should I cut my losses and live the rest of my life on the run?

[ May 09, 2005, 04:20 PM: Message edited by: scottneb ]
Posted by Dagonee (Member # 5818) on :
I think you should get your affairs in order and get ready to spend some time in Oz - the HBO one, not the Baum one.
Posted by Orson Scott Card (Member # 209) on :
No, you don't have to pay the holder of the trademark. You have to stop letting your mind put other people's characters in your story AT ALL.

It's permission you have to ask for. You can't just decide to use someone else's creation and then pay a fee.

And even if the character is not trademarked - because few of us go to that expense - it's generally considered bad form to use other people's characters, except for purposes of satire. And even then it's a little iffy.

So whenever your unconscious mind puts someone else's character in your work, slap that unconscious mind silly and go back to work and invent a character of your own. It will ALWAYS work out better in your story. Mostly because you don't really KNOW enough about the other writer's character to be able to use that character effectively and accurately in your own story. The only characters you truly know are your own creations - because you get to decide what is true about them.
Posted by Sid Meier (Member # 6965) on :
I know I didnt ask the original question but that is good advice if I ever get around to writing a story again or making an rpg. thanks Mr Card sir.
Posted by TomDavidson (Member # 124) on :
Um....Never mind. [Smile]
Posted by Sid Meier (Member # 6965) on :
I dont undertand.
Posted by Avicus (Member # 7652) on :
Additional to what Mr. Card said:
Let's say after you contact the holder and ask for permission to use the character and agree on a fee, there's still not gaurantee that you'll be able to use it. They have to do a background check to make sure you know what you're doing and have had experiance in this type of work before to begin with. No experiance equals not a chance in hell. Second, you can't gaurantee yourself that your character will fall through. After editing it countless time there is always the chance that you may find the character is better left out or given a very small role. So you have to ask yourself is it worth the time and trouble that comes along with it when you could easily make your own character and develop it to be what you want.
Posted by kaioshin00 (Member # 3740) on :
Hmm. Seemed to me like scottneb was joking.
Posted by TomDavidson (Member # 124) on :
Yes, he was clearly joking. But I dislike explaining someone else's joke even more than I dislike explaining my own. [Smile]
Posted by Portabello (Member # 7710) on :
Before the edit, didn't the original post say "writing" instead of "reading"? I didn't realize it was a joke at first, either.
Posted by TomDavidson (Member # 124) on :
I have no idea. But he edited it three minutes after writing it, and well before anyone replied.
Posted by Orson Scott Card (Member # 209) on :
I thought that Scottneb's question was serious, and he was only joking at the end of his post.
Posted by msquared (Member # 4484) on :
I will explain Tom's joke.

It was in reference to Sid Meier commenting on using other character names, or in this case game developers.

Posted by Tater (Member # 7035) on :
I have a question..
I tried to save one of my pictures as my AIM icon, and it said "Please make sure you have the right to use and distribute the contents of this file."

It's just a picture.. of a cat..
can i do that?
Posted by Tater (Member # 7035) on :
Posted by scottneb (Member # 676) on :
Yes, I was joking. My thought was, what if (in my mind) Ender looks like Han Solo. I never meant it seriously. I'm sorry for the inconvenience, Mr. Card. Maybe I should consider putting smilies in the post.

I edited out some of my bad grammar from the original post. It's mainly the same as the original.
Posted by scottneb (Member # 676) on :
Tater, it depends on who took the picture.
Posted by mothertree (Member # 4999) on :
"Ender looks like Han Solo"

Dude, are you crazy? I'm not sure what Ender looks like, but I'm sure I'll recognize him when we meet.
Posted by Orson Scott Card (Member # 209) on :
The photographer who took the picture holds the copyright, and can sue for unauthorized use.

At the same time, smart people know that when you make an image visible to others, it enhances the reputation of the originator. So if you give CREDIT for the foto to the fotografer, you are actually doing him good, and SOME fotogs understand this. However, some don't - and you ARE in the wrong, legally, if you appropriate someone else's image without permission.

And it doesn't help if you whip out your digital camera and take a picture of the other guy's kitten picture. Any means of reproduction is off limits, if you're going to respect copyright.

That's how the law is, and how the publishing industry functions ...
Posted by kaioshin00 (Member # 3740) on :
So do you automatically have the copyright over things your write, create, etc., or do you have to register it somewhere? Can no one reproduce the contents of this very post without my consent?
Posted by Dagonee (Member # 5818) on :
There is no registration requirement to have a copyright, although before you can take action you must register. This is easy to do, and it allows you to take action for violations made prior to the registration.

Copyright attaches to the author (or the author's employer for works made for hire) at the moment the work is fixed in a tangible medium. There's not even a notice requirement, although using the (c) mark will preclude someone from using the innocent infringement defense.

Note that copyright does not prevent all reproduction - fair use applies. This is a VERY complicated concept, but it's why I can quote portions of a news article and then comment on it in a forum.
Posted by teoivan (Member # 8049) on :
Be generous. Yeh but not so much. I am not sure that there is something so wondreful that everyone want to have it thats why it is not necessery to hold the rights for everything what is yours.
Posted by Dagonee (Member # 5818) on :
Copyright and patent law are based on an economic incentive model. The Constitution specifically states that the justification for both is that granting a temporary monopoly will encourage people to create works of authorship and/or inventions.
Posted by tern (Member # 7429) on :
So just out of curiosity, if someone makes a Master of Orion type game and puts in a Ringworld, would they be in violation of Larry Niven's copyrights?
Posted by Dagonee (Member # 5818) on :
Tricky. The test for this is called the abstraction test. All points of similarity between the original work and the new work are compared. Then unprotected elements from that list are discarded. For example, the concept of two people falling in love is an idea that may not be copyrighted. The story of a man named Romeo and a woman named Juliet from feuding families who declare their love in a balcony scene and end up killing themselves because of a failed attempt to fake the man's death is probably protected (or would be if it weren't already public domain).

So to answer your question, it would depend on how similar the planet is to Ringworld. An artificial world built in a ring around the sun would probably be OK. The more features or characters that match up with Niven's story, the more likely it would be to infringe.

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