If the narrator alludes to something, or if characters in a piece of fiction talk about real pieces of media, where is the line? Can you only allude or take quotes from works that are public domain?

But alluding to another work seems to be okay. If I understand what you mean by alluding. I read a story in Fantasy and Science Fiction that was obviously about Count Dracula but it never said his name, it even had a reference to Buffy but again no name.

In a short story I read there was a short reference to Harry Dresden, Jim Butcher's famous character, even though no name. Recently I read another such alluding to but I can't recall who it was.

If your characters are trying to create a virtual "Middle Earth," they'd have to get (trademark and/or copyright) owner permission, too. And that could be part of your story, I suppose.

Calling it Middle Earth probably won't get you into trouble, either, as long as it's clear that it's not actually Tolkien's Middle Earth.

I suspect, although I don't know, that LotR and THE HOBBIT are still protected by copyright, so direct quotes would require permission from the copyright holder.

ETA: I didn't think about the trademark problem.

quote:

---

People talk about elves but I wonder about orcs. Didn't Tolken invent orcs? They also might have been around and I just haven't heard or seen them which could very well be but it wasn't until he used the term that I started seeing them .

---

A tiny little bit of research here. Apparently the word is actually anglo-saxon and even appears in Beowulf.

quote:

---

Yeah, there are no quotes in it or anything. How far do the trademark laws extend? I mean, if it's obvious that the characters are talking about real world book, movies, brands, and themselves admitting that they aren't original creations, where does it become infringement? Could characters talk about Coca Cola for instance?

---

*I am not expert.*

That gets really tricky. In large part, it could depend on the trademark holder and what they consider infringement. Trademarks can be lost if they essentially pass into common usage. So, say the trademark holder might object if you use Coca Cola to refer to any generic soft drink.

On the other hand there's the sort of product placement effect. If your main character who is very likeable refuses to drink anything but Coca Cola, they may like that.

Luckily, since this seems to go counter First Amendment right of Free Speech, when they crafted the copyright and trademark laws and when courts interpret them they said there is a Fair Use Defense. What this means is that if you use without permission and the copyright/trademark holder gets upset you can wave the white flag of truce and defend yourself on the following counts (heavily paraphrased of course):

• What I did use I used minimally
• This is a parody or satire
• This is a criticism/opinion piece
• It did not diminish the value of the original copyrighted work
  

What does this mean in practice?

You can have characters in a story wandering around Los Angeles, popping into the local Barnes & Nobel, where they buy a copy of Stephanie Meyer's Twilight. They can then stay up all night drinking Starbucks Coffee, talking about who likes Jacob over Edward Cullen. The following day they can play Angry Birds on their iPhone, get bored, and decide to go to their local AMC theater to go watch The Green Hornet starring Seth Rogen.

What you can't do is have a character living in Metropolis who wants to apply for a job at the Daily Planet.

Regarding Tolkien:
You will more than likely run into trouble if you write about characters who inhabit a world called Middle Earth and visit places such as Rivendell or The Shire.

But, if you write a story about a little kid who escapes in his imagination to Middle Earth in order to cope with his parent's divorce, then you would more than likely not upset the copyright holder.

In the latter you are using a well known work as a cultural reference, while in the former example you essentially appropriate it and pass it off as your own original work.

On a side note, Lucas does not own the word droid. He owns the trademark to the word. That means that only Lucas and those he gives permission to can use the word droid on a product. You can say the word all you want. You can have characters refer to Lucas's droids. What you can't do is have a story about robots called droids. You will have to call them something else. Eventually though I suspect the word will become so generic and in such common use that the trademark will be lost, much like the words Escalator, Aspirin and Zipper.

A final caveat: fair use is a defense. It is not a right. You might still get a cease & desist letter, you can still get sued. The Fair Use clause simply allows you to defend yourself against infringement claims if you meet the criteria set out in the copyright/trademark laws and case law.

quote:

---

On a side note, Lucas does not own the word droid. He owns the trademark to the word.

---

There are 66 registered trademarks (mostly dead) that include "droid" or some variant spelling thereof. The oldest one on record does belong to Lucas, for "TOY ACTION FIGURES AND RELATED ACCESSORIES" and is expired. http://tinyurl.com/4pn56bu for those interested (#66). Some do/did NOT belong to Lucas. (Currently there are 5 active owned by Lucas, and about 20 active owned by other companies.)

BTW he didn't invent the word; I first saw it in something written in the 1950s.

=====

Companies always refer to their product as (frex) "Kleenix brand tissues", never just "Kleenix" -- and hop up and down about everyone else doing the same so as to avoid losing their trademark by becoming a generic term FOR THAT PRODUCT TYPE in the eyes of the public. But the makers of Kleenix brand tissues can't complain if another company also makes tissues and calls them "Charmin brand tissues".

=====
Yeah, there are lots of people using "Middle Earth" as a trademark too, including Saul Zaentz Company (DBA Tolkien Enterprises).. tho the first one I looked at is overly-broad and probably would not hold up if challenged in court, since the name had been widely used for similar outfits long before the movies. ("Services for providing food and drink; temporary accommodation; bar services; cafés and cafeterias; restaurants" -- they have a bunch of these, apparently trying to cover the entire manufacturing and service industry)

=====

What was the question?

I also think some of these trademarks of words stand up because no one has the moxie---or the money---to challenge their use. I gather the Elvis Presley estate succeeded in trademarking "Elvis," "Elvis Presley," and "Graceland"---but when they applied for a trademark on "The King," they were laughed out.

I detest the word "robot", so I use "droid" to mean any sort of household robot. If it talked I'd have to call it an android.

====

You might get a nastygram because they HAVE to do that, to preserve the legal appearance of protecting their trademark should it ever arrive in court. Xerox already had an Adventure because 'xerox' had become a generic word for 'photocopying' and therefore was at risk of being lost as a trademark; I forget how that case came out. Ditto for Kleenix.... ah, here's an article:

http://en.wikipedia.org/wiki/Genericized_trademark

However, unless you're trying to sell something similar under the same name, it's not covered by their trademark. So you can TALK about "Middle Earth" all you want. Otherwise, how could you ever use "Kleenix" or "Xerox" in a sentence? They'd rather you didn't without saying "Kleenix brand tissues" or "Xerox brand copiers" , but no one does so in Real Life[tm].

Tho "Middle Earth brand fantasy realm" sure sounds dumb.

It looks to me like this subject has a lot of caveats and nuances, and I'm thinking I may just have to look at every individual reference of something from another book and determine whether that specifically being used right there would be something that might get me in trouble. I know a few copyright lawyers I might be able to get to look at it too.

But I wonder if getting permission to use a name that is copyrighted or use a quote is a job for agents or if a writer has to have special lawyer for that. Some writers use a whole bunch of quotes. I mean at least a couple per chapter. That is a lot of permissions. Or would the publisher do that?

quote:

---

But I wonder if getting permission to use a name that is copyrighted or use a quote is a job for agents or if a writer has to have special lawyer for that. Some writers use a whole bunch of quotes. I mean at least a couple per chapter. That is a lot of permissions. Or would the publisher do that?

---

quote:

---

But I wonder if getting permission to use a name that is copyrighted or use a quote is a job for agents or if a writer has to have special lawyer for that. Some writers use a whole bunch of quotes. I mean at least a couple per chapter. That is a lot of permissions. Or would the publisher do that?

---

This is one of the reasons why the Fair Use clause in the copyright law exists - to prevent a chilling effect on freedom of speech. To seek permission for every single mention of a copyrighted work or trademark would be too onerous a requirement. Copyright protection and Fair Use is a balancing act. Without it, shows like Family Guy and SNL would never exist. (Granted, parody/satire usually gets a 'get out of jail free' card).

Writers, be it non-fiction or fiction, simply need to be mindful of what they are borrowing, how much, and in what context.

You really do need to get permission if you were to create a derivative work - meaning, a new work based on a pre-existing copyrighted work. If you want to write a whole new adventure set in The Shire, you need permission from Tolkien's Estate because they hold the copyright to The Hobbit et al. One is better off creating a derivative work from what is in the public domain - much like the author of Pride and Prejudice and Zombies did. No permission is needed. Simply make sure that the work is in the public domain. Otherwise, a lawyer might pop out of the woodwork and give you an awful fright.

quote:

---

despite what Lucas used the term android and robot are for two different artificial beings. Robots are mechanical and androids are chemical based. Or so that was the way it was while I was growing up. In books and comics,...

---

You musta read different books than I did (I never read much comics) ... a robot was usually an obvious mechanical, while an android was manlike, regardless of how it was grown or built (tho if grown, it was more likely to be called a "clone" even if that wasn't technically correct). The word itself means "manlike". Tho up until somewhere around the mid-1960s, "robot" usually did duty for both.

http://en.wikipedia.org/wiki/Android_(robot)
(tho the article is wrong, Lucas may have popularized but didn't invent the shortened term "droid").

However.....

Robot itself is a newer made-up word than android:
http://en.wikipedia.org/wiki/R.U.R._(Rossum%27s_Universal_Robots)
and in today's litigious society, probably would have been trademarked up the wazoo. Note that these "robots" (the first use of the word) were organic (functionally, clones or golems), not mechanical!

I would take "robot," in its current context, to mean "mechanical man," and "android" to mean "mechanical man intended to resemble (closely or loosely) a human being." By that, an android would be a robot but a robot wouldn't necessarily be an android. (We'll ignore other methods of construction for the moment, just to simplify things.)

By that, C3PO would be an android, but R2D2 would be a robot.

*****

I see from the Wiki article that Verizon, apparently, licenced the term "droid" from Lucasfilms for its phone...Corporate America won't fight for something, they'll just pay for it.

quote:

---

Wireless communications devices, namely, mobile phones, cell phones, hand held personal computers, hand held digital audio players and personal digital assistants; wireless communication device accessories and parts therefor, namely, earphones, headphones, batteries, battery chargers, charging appliances for rechargeable equipment, connection cables, and electronic cables; computer software for wireless telecommunications for use with wireless communication devices; mobile digital electronic dev...

---

see, e.g., http://www.trademarkia.com/droid-77845682.html.

Searching that site produces a lot of trademark applications for terms containing "droid," but none that apply to robot-like creatures in science fiction stories. If I'm correctly understanding what's been said in this thread, then there's no infringement for using the word "droid" in that way.

This has been a useful thread -- I didn't know that a trademarked term was valid only in a specific arena, so you could, for example, create with impunity a product called Kleenex power tools. :-) (I presume there's no trademark on that yet, anyway...)

(* In fact, it's a series of phones: Droid, Droid 2, Droid X, Droid Pro, and so forth.)