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Natej11
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I'm not too savvy with legal policies, and I haven't really needed to be since none of my books up until now have been set in the current world, but I was wondering what the rules are for referencing copyrighted names or proprietary terms in your books.

For instance, can you say your character is drinking a Pepsi? If he's being flown around by someone with the magical gift of flight can he say he now knows what it's like to get a ride from Superman?

So far I've been ducking it by using generic terms (MP3 Player instead of iPod, etc). And I could still keep ducking it if needed. I was just wondering what exactly crosses the line when it comes to pop culture references. I know Sierra was sued all the time for the references in their Space Quest series.

Anyone had the opportunity to look into this?

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extrinsic
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Trademarks enjoy as much, if not more, intellectual property protection rights as copyright. A best practice is to never use a trademark, artistic purposes notwithstanding.

Like copyright, trademark use requires express consent. However, the incidental use doctrine applies to trademarks. An incidental mention of a trademark may or may not incite litigation, which is the overarching reason to avoid trademark use. Government usage of "Star Wars," for example, bothered George Lucas. He and his companies have since trademarked terms so that he has legal standing to bring infringement lawsuits based upon diminishment of a trademark's value. "Droid," for example, which Lucas Films licenses to Motorola for its cell phone applications, illustrates a trademark's value. If Lucas had not trademarked the term and it became ubiquitous, Motorola may not have purchased a license for its exclusive use.

"Xerox" is a trademark that incidental use in all areas of daily life has become ubiquitous for copy. The trademark remains Xerox's property, though has now become through common incidental use a verb, a generic proper and common noun, and adverb and adjective uses as well. Xerox has little normal recourse to trademark infringement litigation due to the trademark's ubiquitous use. Though no competitor company may use the term, anyone else may without undue litigation concerns.

The principal concern from incidental trademark use is any trademark owner may have legal status to initiate a lawsuit action for value diminishment at the owner's discretion.

On the other hand, many trademark owners may consider incidental use a product placement (a commercial value factor), free marketing, or goodwill--a legal principle at law meaning an intangible asset whose value is an agency's reputation and marketability. Xerox, for example, enjoys a respectable reputation and strong competitive marketplace status based on its products' consumer performance.

The incidental use doctrine is generally considered a protection from trademark litigation, though not a bar in and of itself from litigation. Trademark infringement litigation, like copyright infringement litigation, cannot be confidently decided outside a competent trademark court--meaning a federal trademark court's procedures, precedents, and requirements. An individual's discretionary incidental trademark use may be flawed and subject to litigation, no matter how trivial the incidental use is.

Why? Because a trademark owner may have other agendas and bring a suit based on an incidental trademark use infringement to quash situations the trademark owner may not otherwise have legal status to bring. For example, a narrative's glorification of a behavior the trademark owner finds offensive though is protected by free speech doctrines. The trademark owner uses threat or actual trademark action to quash the alleged offensive content and perhaps unilaterally punish the alleged offender for alleged anti-social acts.

Anticipated cost of pretrial litigation is often sufficient to quash an incidental use, if desired. Bullying, plain and simple, though with legal status based upon incidental use trademark infringement value diminishment. A complainant--the trademark owner--need only assert a use will diminish trademark value in order to enjoy legal status to register a lawsuit. A preliminary tactical cease and desist demand letter may be sufficient to quash an incidental use, before any costs are incurred or litigation initiated.

On the other hand, incidental use usually enjoys wide tolerance because few trademark owners want a bully reputation.

Other considerations for trademark use include artistic concerns: whether the use will retain relevance. Pop culture references frequently expire lightning-fast, especially cool-culture references. How many readers today know the term "Science Romance"? Science fiction's early label, circa 1870s. Or appreciate the relevance of "Edsel." Maybe even "DeLorean" is outdated presently.

Perhaps an incidental use may "tell" meaning artlessly. Namedropping is a form of writer expectation a pop culture reference holds significance auditors appreciate. Say an incidental use of "The South Sea Company" without contexture to develop its meaning, at one time a trademark of a long defunct company--who knows what that means in isolation. Few may even know of the company or its disreputable stock trade practices.

Since contexture development is important anyway, why not invent an imitation "false document" in the first place? "Walmart" can be otherwise Hallmart, for example, borrowing from "Hallmark" as well. Contexture developed nonetheless to express an attitude about Walmart as a big-box retailer with a faceless corporate indifference toward workers, consumers, communities, and government, if that's the intent, and avoid infringement yet readers clued into that Walmart is obviously satirized.

iPhone can become myCell ®, itPhone ®, blowHole ®, adNauseam ®, etc.

Pepsi can become Popsi, Tonica ©, SodaLite ©, etc.

Only contexture need develop so that readers appreciate intent and meaning.

How? Use agonist viewpoint to express attitude commentary, (emotional), about the reinvented trademark, pop culture reference, named-whatever circumstance. Reality imitation through expressed attitude and emotional commentary is crucial for contexture development. Once released from intellectual property rights restraints, their considerations and concerns, the cosmos is infinite.

Popsis tasted sweet, bitter, dark, bright, cold, ginger hot, effervescent, mind-numbing, intoxicating drank fresh out a blisterpac © from an automabot © vendor. Costly next to watercooler tapwater. Once on payday--a month's treat.

Doesn't take much; a little on-the-fly, improvisational thought or speech (stream of consciousness) that expresses a personal attitude and emotional commentary serves.

[ October 04, 2014, 06:17 PM: Message edited by: extrinsic ]

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Robert Nowall
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Problem between accurately writing about the future and the reality of writing in the present.

Many of these trademarked copyrighted terms will become genuine words---it has happened, it will happen.

But in the here-and-now, they remain under someone's control---and any writer risks the Wrath of the Corporate Honchos for using them.

Hard dilemma, huh?

*****

I do think it's silly to make up certain terms---the abovementioned "Popsi" for "Pepsi" comes to mind---especially when "soda" will do the trick in this case.

*****

Sidebar thought: you may have heard of the saga of the song "Happy Birthday to You." You see a lot of TV shows and such make up some sort of birthday song and use that, rather than pay royalties for using that one.

A while back, there was a lawsuit (that grew out of a documentary) that alleges that "Happy Birthday to You" is, in fact, in public domain, and has been for many years now----and that the so-called owners of the copyright, the song publishers, have perpetrated a massive fraud on the world by insisting it wasn't and collecting royalties from performances. (I haven't heard anything recent---it may have been resolved, one way or another, without my hearing about it.)

So, bringing the sidebar back to the main line of thought, it's possible that using these trademarked words may, indeed, be permissible by the rules of fair use---but few of use poor people have the macho to stand up to the corporate lawyers with their bottomless wallets and fight for what's legal.

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Natej11
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Good points all.

I suppose it's usually better to just avoid poking the beast. Takes a bit from immersion in a modern world when you can't have people use or talk about named products they'd actually use or talk about, but that's the breaks.

Generic terms it is.

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extrinsic
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I used Popsi because I've read the term in prose and seen it occasionally in advertising for aftermarket knockoffs--Pospi Cola, generic product brand name that strategically evades domestic and international counterfeit trade and trademark laws. Want to buy a Rulex watch? A Taffiny lampshade? A Fibergé egg? A Guachey handbag?

I think generic terms is a valid strategy; however, invented name brands can be more entertaining and imitate reality more artfully. Brand names need not be cutesy, clever, or ironic. They can be as straightlaced as existing name brands, only invented and perhaps trademarked to preserve possession of them so that corporate interests don't shark them out and usurp ownership then sue because of retroactive infringement. Though cutesy, clever, and ironic name branding has become a going business concern.

Seen ownership clashes happen both directions and every which-a-way. The other direction--preemptive trademark registration so that an individual profits from selling trademark ownership when a corporation determines the unique term is wanted. The corporation may have legal status if the term is by rights their property in the first place, from a prior original incidental use in its corporate business book, for example.

An advertising agency may inadvertantly, incidentally use a term for a marketing campaign. The term's ownership accrues to the client as a work for hire. Its incidental use may be initially overlooked by the corporation. When the slow wheels have ground their circuit, decide they want to trademark it, only to find an opportunist has already applied for trademark registration. Clash on.

The "Happy Birthday to You" brouhahah trial will take place after November 2014.

[ October 04, 2014, 08:43 PM: Message edited by: extrinsic ]

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MattLeo
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Guy who owned a company that created trademarked products here. Trademarks are fundamentally different from copyrights. It's not a case of one kind of intellectual property having stronger protections than the other, the protections are entirely different.

A vendor names or labels his goods with a trademark in order to identify them. Unlike copyright, which restricts *use*, trademark restricts the *association* of a name or symbol with a product. Using a trademark to refer to something that the mark's owner has *already* applied it to is prefectly OK. For example advertisements frequently use the names of competitor's trademarked products; Audi and BMW have been sniping at each other by name in their ads for years. So you can certainly have a character in a story drinking a "Pepsi" while he drives his "Toyota" to "Disneyworld". That's just calling a spade what the spade's vendor says it should be called.

The uses of a trademark that are infringing are the ones that confuse consumers about whose product they are buing. PepsiCo can't sell a soft-drink labeled "Coke", because people might buy it thinking they're getting "the real thing".

It's safe to say most restrictions on the commercial use of trademarks don't apply to fiction. Walmart can't call any adhesive a "Band-Aid" but a character in a story can. Same goes for calling any kind of carbonated beverage "Coke".

One example of the difference between fiction and commercial use is parody. Parody advertising is not necessarily protected speech; if a company's advertising alters a competitor's trademark in a denigrating way the company may be guilty of a civil tort. Writers of fictional parody can alter and mock away. In the 2006 film "Idiocracy", the hero awakes 500 years in the future and finds that "Starbucks" now sells quick sexual gratification. Note the satirically altered, but still identifiable Starbucks logo.

About the only trademark issue that a writer is likely run afoul of is using a trademarked character name for a character in one of his own stories. If the use of "Superman" creates the confused impression in a reader that he might be reading a DC Comics authorized story, then that use infringes. Having a character refer to the DC character "Superman" as a metaphor isn't confusing, therefore it's not infringing.

But there IS a good reason to be careful about using trademarks in your stories: it can make the story dated, and faster than you might think. The trademark "Pan-Am" appears in the 1982 movie BLADE RUNNER. In '82 Pan Am was the largest international airline in the world. A few years later Pan Am went out of business. The Bell System logo is also shown, but that monopoly was broken up two years after the movie came out.

You can use this dating effect to your advantage too. I had a story set in 1938 where the characters drive in a Packard automobile to an Automat reastaurant. The last Packard rolled off the line in 1958, and the last Automat was closed in 1991. The "Packard" and "Automat" trademarks are still owned by somebody -- they were sold off when the companies were liquidated along with everything else of conceivable value. So you still can't open up your own "Automat" restaurant. But you can certainly use an Automat restaurant as a setting in your historical fiction.

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extrinsic
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Several tests for trademark infringement orient on nominative use--mentioned incidentally, and descriptive uses--a claim by a GE company a GE-similar product is superior to a Siemens product, or the Altamont Frenzys are crueler gaolers than Atlantis Sharifs, for examples; diminishment of value as distinctiveness impairment, like with Xerox, and tarnishment, disparaging a trademark, parody nothwithstanding, which are noteworthy risk considerations for prose writing.

A writer can nominatively risk mentioning most trademarks; a few trademark owners will address any use. For example, characters discuss meeting for coffee at a Starbucks. A writer can descriptively use a trademark, say, mention McDonald's as a fast food emporium where difficult job events happen and another burger-flipper joint job where they don't.

Use of Walmart descriptively to mean a callous big-box retail franchise has become common everyday conversation to the point of distinctiveness impairment, on one hand, meaning any big-box store--the Walmart on Tenth that sells home builder supplies (Home Depot-Lowes); on the other hand, is disparagement from association of callousness with the franchise that tarnishes the trademark. Note, above uses are all nominative or descriptive.

Tarnishment is easily the more actionable and most to be avoided risks. Distinctiveness impairment is a toss-up risk, even if a narrative using a trademark goes blockbuster, which may make the use more attractively actionable for its deep pocket revenues.

A test for parody and similar ironic uses of a trademark or copyrighted matter is whether the use is transformative, meaning artful, fresh, original, or mere infringement. Starbucks as a sex emporium is transformative social commentary, for example, cuts out the middle ground, so to speak.

[ October 04, 2014, 11:09 PM: Message edited by: extrinsic ]

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Robert Nowall
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There is one alternative---be creative about the name you use. The TV show "King of the Hill" wanted something like "WalMart" for a store, and came up with the name "MegaLoMart." Great name.

So the good solution, if not the easy solution, is to be clever.

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MattLeo
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I found this article useful. In a nutshell, nominative use of trademarks per se isn't a problem for authors. Neither is trademark dilution, other than tarnishment. Defamation and tarnishment *are* real concerns.

I think the risk of defamation or tarnishment is minimal if you just use common sense. Don't say that Pepsi causes cancer unless you're looking for a fight. However I personally wouldn't hesitate to suggest that Pepsi causes tooth decay. I realize that's a personal choice, but I don't think that fear should dissuade us from the responsible exercise of our freedoms.

One concern that could cause trouble for a conscientious writer is using live or recently dead people as characters, even in a non-defamatory way, if those people have a commercial interest in their persona. The laws on right of publicity vary dramatically from state to state, allowing plaintiffs to venue shop.

A few years back the notoriously litigious Tolkien Estate sent a C&D letter to an author for using Tolkien as a character in his novel, threatening to sue under the laws of Texas. Why Texas? Because Texas is one of the states where an individual's right of publicity survives death. Even so that right is not unlimited. The matter was settled when the publisher added a disclaimer to the book stating that it was not endorsed by the Tolkien estate.

So don't use a live, famous person as a character in your story without researching the right of publicity issue thoroughly. The same if you're dealing with a recently deceased celebrity.

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extrinsic
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The rhetorical scheme substitution is definitely one way to avoid infringement for prose: Megalomart for Walmart, Popsi for Pepsi, automabot for Droid, etc. Another is to use the figure apophasis and similar figures: mentioning a circumstance by denying it or denying that it should be mentioned.

Not to mention, James left the exam early. He was home when Mary arrived.

"Gossip about So-and-so's drug abuse shouldn't be discussed in public," Jane Smith, public relations spokesperson for Citizen's Watch Unity, said at the party political rally. "These rumors from unnamed sources highly placed in the mayor's mansion are simply untrue to begin with."

Golly! Puts a scandalous topic out in the public debate or renews its freshness, reminds the public of the scandal, though denies the gossip is true. On its surface, noble and considerate; however, with a nefarious agenda. Delicious.

Reversed agenda, apophasis may release positive circumstances or have a harmless agenda.

"The rumors of my death have been greatly exaggerated." (Mark Twain)

"Fans should not expect a new installment of blockbuster novel writer Kim Jones Glory Land franchise next week."

[ October 07, 2014, 05:24 PM: Message edited by: extrinsic ]

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shimiqua
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https://www.youtube.com/watch?v=n1Zvv5YBjLw

I think your information is outdated. Check this video out.

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TaleSpinner
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I think the man in the Youtube video has misunderstood what's going on. His only real example is a mention of Sony. My understanding is that when Sony see a violation of their copyright they can either ask Youtube to take it down, or "monetarize" it by asking Youtube to place an ad from which Sony make money. Youtube, I believe, make this easy.

His other example was Walt Disney who paid copyright holders for film rights when required by law; certainly he paid P L Travers for the rights to make Mary Poppins.

Copyright law hasn't changed materially in many years; it's changing a bit here in the UK, but not much. The owner of the copyright still gets to choose whether or not to sue when there's a violation. They do it on the basis of cost - if violator is earning big bucks, violator can expect Sony, the P L Travers estate or whomever to expect a cut.

Hopefully helpfully
Pat

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extrinsic
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Whose information is outdated? YouTube wingnuts espousing dissenting opinions are hardly intellectual property lawyers, for one, nor do they speak for anyone but themselves and a few gullible followers. Young left-wing reactionaries preaching property theft who do not themselves do so and pay for their crime are akin to Skinheads preaching ethnic cleansing who don't themselves partake. Hypocrites.

Such opinions would roll back the currently closest-in-history, creator, producer, consumer balanced intellectual property rights principles to the pre-Statute of Anne era (1710) outlawry, when any intellectual creation was immediately public domain and pirated at whim. No such foolishness will stand or else the content quality will decline drastically to the melted-box-of-crayons soup seen in the self-publishing marketplace. Free-for-all espoused attitudes about unauthorized infringing publication, Internet publication, like at YouTube, which is regularly sued for infringement and receives numerous take-down demands, notwithstanding.

I could not in good conscience agree with such nonsense. I want the due revenue from my creative efforts as much as any creator. Such dissenters are, in my estimation, no more than idea pirates who haven't an original thought or creative inspiration with which to shake a stick, let alone climb out of a bathtub or able to think for themselves. Who would want to follow self-annointed leaders who cannot think beyond their noses to spite their faces? Cults.

Plagiarism is lie, cheat, and theft. Intellectual property right infringement is all those and Internet and highway piracy, passive-aggressive violence against original artistic expression, plain and simple.

[ October 07, 2014, 05:32 PM: Message edited by: extrinsic ]

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MAP
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Did anyone actually watch the video? That was John Green who is a very respected YA author. He never said the copy right law changed. It hasn't. He did say that what a lot of youtubers do is illegal, but that those copy right laws aren't being enforced. The internet is too huge for individual companies to police everyone, so in a large part they are picking and choosing who to fight and not fight, and letting a lot go.

He isn't an intellectual property lawyer, but he never said anything that contradicted the law. Only that the laws were not being enforced.

The internet is changing everything, and at such a fast speed that our laws can't really keep up.

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extrinsic
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Actually, I did review the clip several times. Closely. Green's overt point is akin to Grant me the tolerance to cope with things I cannot control. Noble enough on its face. However, Green's underlayed point is don't worry, be happy; everyone infringes, which is neither true nor noble, so might as well help yourself to any and all intellectual property with an expectation of total impunity, which is naive on its face.

Green notes exceptions to that attitude: when corporations and deep pockets are involved, when revenue stream and public interest potentials outweigh risks for creator, commercial, or consumer interests.

The U.S. Constitution, Article I, Section 8, Clause 8, the so-called Copyright Clause, anticipates a balance of intellectual property creator, commercial, and consumer interests for a common good. Today, due to Digital Age technology influences, at long last, two hundred twenty-six years later, the U.S. Constitution's anticipated balance has come to pass. The very free-for-all infringement Green permissively espouses as not worth worry drove changes in the law that respect that balance. Worry hard so the balance is maintained.

Perhaps shallow-pocket infringers have no concern for wanton infringement uses; many borrow, cheat, and steal at will, mostly from a lack of knowledge what constitutes infringement, let alone plagiarism acts, and because they rarely get their hand slapped for their infringements, never mind their lack of imagination and creation skills. However, the consumer interest factor respects trivial infringement uses, not plagiarism though.

Gosh, a balance due to permissiveness, driven in part by rampant and easy, convenient digital technology publication and access to protected content!? Moneymakers who profit from infringement draw action. Non-moneymakers who earn no gain from infringement rarely draw action.

The laws are caught up with the Digital Age and beyond; boundary testers and naive consumers enjoy a free pass, generally, because they do not profit from their infringements and there's no profit from their shallow pockets. Little or no commercial interests.

Public consumer interest may in many cases outweigh creator interest and, lo and behold, actually commercially benefit a creator through free advertisement, promotion, and publicity. However, within limits in order to avoid action.

Trademark protection is cited under the Constitution's Commerce Clause: Article I, Section 8, Clause 3.

Me, I won't risk my hard-earned creations' revenue potential due to laissez-faire infringement, nor will I stand idly by and allow crass, egregious infringement.

[ October 12, 2014, 04:50 PM: Message edited by: extrinsic ]

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MattLeo
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The video is poorly informed.

It is TRUE that many copyright holders have found ways of monetizing infringing uses, and so turn a blind eye to many such incidents. But this does NOT apply to TRADEMARKS.

One way that copyrights are much more powerful than trademarks is that you can't lose your copyright. You can only sign it over to someone else. Trademarks CAN be lost several ways, or your rights to them may be undermined. Therefore you have to expect companies to come down hard on trademark infringers even if they're lenient with copyright infringers. If you don't beleive me try posting a video called "Star Trek" that has nothing to do with the Paramount franchise. Paramount has to go after you otherwise "Star Trek" may become generic for science fiction, like "Aspirin" and "Cellophane" became generic terms.

In a nutshell: Copyrights may or may not be defended by the copyright holders at their discretion; they lose no rights to their work by not defending. Trademarks MUST be defended by their holders. Failure to defend has adverse effects on their interests.

As for this guy letting other people use "his" catchphrase, it has exactly nothing to do with copyright holders turning a blind eye to people posting TV episodes or movies. He has no claim to ownership of the phrase "Don't forget to be awesome," even if he dreamed it up and/or popularized it. You can't copyright a catchphrase, it's too short. And you can't trademark anything unless you affix it to a product you are selling, and then you should use the trademark symbole ("™") to make it clear what you're doing. If he didn't do that, then anyone could slap it on merchandise. And the instant anyone else did that his opportunity to claim the phrase as a trademark was gone.

The trademark concern most likely to affect US is titling. Titles cannot in any case be copyrighted. They usually do not qualify for trademark, but with two exceptions: (1) Titles of series (e.g. "Harry Potter and..."), and (2) titles of works with such notoriety the public automatically associates them with a specific work (e.g. "The DaVinci Code"). Random example drawn from the middle of the Amazon deck: An author named Alaric Bond wrote a book called "True Colors", that is book 3 of "The Fighting Sail Series". This book, whatever it's merits, has no special notoriety, so you can safely call your OWN book "True Colors". However, you CANNOT use "The Fighting Sail Series" for your own book series. Nor can you call your book "The DaVinci Code".

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Robert Nowall
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Weren't the "DaVinci Code" people involved in a messy plagiarism suit by the writers of a book called "Holy Blood, Holy Grail?"

I also suppose you could use the name "Harry Potter" for a character---so long as the character isn't some teenaged wizard in a fantasy world. I do know of at least one prior use of the name in literature. And if someone was born with that name, that person could certainly use it any way he pleased. (I know of at least five people named George Harrison, not including the Liverpudlian musician.)

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extrinsic
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Two of three The Holy Blood and the Holy Grail, a nonfiction work, writers sued Random House over an idea plagiarism claim against The DaVince Code. Note, Random House published both books. The controvery escalated sales of both books, immediately ahead of the The DaVince Code film release. Also, the case was tried in Britain. One of the complainant writers was also a U.S. citizen, one British.

Random House prevailed for The DaVince Code. The court ordered the writers who sued to pay eighty-five percent of Random House's defense costs, reported at $6.2 million awarded.

British intellectual property laws vary from U.S.'s as regards plagiarism. A possible claim of idea plagiarism would not stand in U.S. federal civil courts, except as a criminal act itself, though is open for consideration by British civil courts.

Smacks to me of strategic venue selection. Also, the controversy generated word-of-mouth-buzz publicity for Random House, Dan Brown's works, and The Holy Blood and the Holy Grail writers and their other publications: acrrued sales benefits. The net, though, for The Holy Blood and the Holy Grail writers was possibly a gain. Reported sales of The Holy Blood and the Holy Grail reached 40 million copies in the wake of the trial. Roughly $1.00 per copy royalty, conservative publication business model estimate. $40 million minus estimated claimant legal costs of $12 million.

The cautionary tale of the controversy: legal expenses cost unreported millions of dollars from the court's legal cost sanctions, and probably complainant legal costs comparable to defense costs. U.S. law also provides similar sanction awards to the party that prevails in intellectual property cases, if a work's copyright registration is timely. Required U.S. intellectual property representation, retainers for representation start around $25,000 to initiate an action.

Legal cost sanctions and other damages awards are only available in the U.S. if a work's copyright is registered within three months of first publication date. Another cautionary tidbit.

On the other hand, a SLAPP, Strategic Lawsuit Against Public Participation, suit is a form of barratry, a common law principle based upon legal action used to harrass, threaten, intimidate, and censor otherwise protected speech dissent and for other abusive tortious actions.

The underlayed dissent, as it were, The Holy Blood and the Holy Grail writers believed was The DaVince Code negatively participated against their work. They sought an injunction to bar further competitive distribution of The DaVince Code, notably, the film release.

Random House was the profit winner overall: gains from book sales, and minimal legal cost losses, comparable to overall sales benefits. Dan Brown testified for the defense. Random House probably compensated his travel expenses; plus, he enjoyed increased sales from the publicity.

[ October 12, 2014, 04:47 PM: Message edited by: extrinsic ]

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Robert Nowall
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I can't separate the totals: Holy Blood, Holy Grail was a best-seller in the USA sometime in the late 1970s / early 1980s---I read it around then. (Haven't read The DaVinci Code.) Sales may have maxed out before the lawsuit; the writers may have feared rereleases and reissues might be impacted.

Besides---and this is crucial to my understanding of this case, though I don't know if it came up or not---Holy Blood, Holy Grail was marketed as non-fiction. One can't plagiarize facts---and since the writers claimed their work contained facts, I can't see how they can lawfully complain that someone else used those facts in another work. Unless they were perpetrating a fraud by this marketing...

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extrinsic
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Holy Blood, Holy Grail writers claimed Brown materially plagiarized the structure and "plot points" of their work. That's the idea plagiarism theory of the case. Structure is still an idea not subject to infringement claims. Also, the "plot points" are material ideas Holy Blood, Holy Grail writers claim as their creations as work product research, though the ideas abound across conspiracy theories of alternate Christian dogma.

Theoretically, only one dramatic structure exists and has ever existed, an arc or triangle shape, dependent upon any given reader's sense and sensibilities. Some readers see an upward-sloped inclined plane.

I see a pointy end up stair-step terraced ziggurat on two faces and a teetered, pointy end down, upside down ziggurat on the other two faces of a tetragon ziggurat.

Despite different senses and senses of different structural organizations, plot is plot, one and only one, invented long before perhaps even human speech began. The creation of the universe is a plot begun from a signal event: The Big Bang theory's bang "hook" event, a routine interrupted, for example. The universe hasn't yet reached a climax apex.

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Robert Nowall
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I dunno...seems to me that discovery of the McGuffin would be a universal, whoever worked with facts in question. One's characters would be unique (if one has done it right) and not subject to claims of plagiarism.

I got to thinking of assorted things based on the Oz stories...particularly the recent book and musical Wicked. Here, the Oz stuff can be used, because it has lapsed into public domain. (I follow two webcomics that do just that.) I suppose, though, that what the writer of Wicked created, background and character names, couldn't be used without being plagiarism---at least until they, in turn, lapse into public domain.

Also, though the Oz books would be in public domain, what was done in the famous 1939 movie isn't, because the studio (or successors) created it and still owns it.

I gather there have been recent arguments about who has the rights to Superman---the estate of one of the creators making a legitimate posthumous claim on what is now a multi-billion property. If I recall right, the court agreed that rights to Superman did belong to said estate---but the embroidery of later years, Kryptonite and Jimmy Olsen and other things, still belongs to DC Comics (or whoever owns them right now).

I saw the other day that a new authorized sequel to Gone With the Wind is about to come out...I figure there are, oh, five years at the most before the "life-plus-seventy-years" rule-of-thumb comes into play and unauthorized sequels abound. No doubt attempts will be made to "hang on"...and this new sequel, and maybe others, is an in-the-homestretch attempt to cash in while Margaret Mitchell's heirs still can.

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