1. Firelight
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    Firelight New Member

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    A sad finding....

    Discussion in 'General Writing' started by Firelight, Dec 6, 2010.

    I'm writing a story I haven't picked up since 1995... I have no copyright date on it, but the paper is old and dog-eared.

    The main character of my story, whose name is extremely important TO what makes the character itself, is the same name as another main character in someone else's book published recently. The name is distinctive enough that I would now seek copyright and likeness trademarks.

    This character and story is beloved to me and if someone comes along and goes 'hey' it would shred it all apart.

    What can I do and since this person is published, will it stand? I will not reveal the name. I am kicking myself.
     
  2. wolfi
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    wolfi Contributing Member

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    First off it really depends on the name, if the name is something like He who shall not be named (i know but i wont even try to guess how to spell it)
    then i may say something
    so in other words
    if its truly a unique name then it may cause some problems

    but if its a common name then i don't see a problem

    how ever you will never please every one and someone will say "you copied!"
    just because they like to
     
  3. FrankABlissett
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    FrankABlissett Active Member

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    First of all, nothing we can tell you here trumps actually going to a lawyer.

    First copyright. Copyright is from the moment of creation, though proving it can be tricky at times. Also, there is no copyright on a name.

    Even if you had published a decade ago, the name would not be protected under copyright.

    Second, trademark. Trademark could be an issue if the name were truly unique and there was potential for confusion between the two characters. That's almost certainly not going to be the case though.

    If you're set on writing the story, then write it. Then, when you've got an agent or publisher, let their lawyer give advice on how to procede. May be as simple as "Don't worry about it", "Change the spelling of the name a little", or "See if the other party will allow the use for a few thousand dollars."

    In the meantime, just write it.

    -Frank
     
  4. Firelight
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    Firelight New Member

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    It is unique, as unique as Voldemort. I couldn't change the name without altering its meaning, much like if you changed Voldeport even a little the meaning of the name changes, and it is apt for the character.

    A novella from high school all dog-eared and yellow with teacher's comments on it doesn't hold a candle to (c) 1995..........

    oh no..
     
  5. wolfi
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    wolfi Contributing Member

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    honestly?
    I'd say this, names can't be Copyrighted (there is an exception to every rule)
    and even if it was, unless your book gets big the odds of the guy reading it or even their layers are like a billion to one and even if they do many "small time" things get away with it because its not wroth their time

    that being said ask a lawyer just because they went to school for stuff like this
     
  6. Firelight
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    Firelight New Member

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    I'm so upset about this I'm physically sick. The name shows up in the title...just as I was going to do. There are no words for how I feel, dread sick with despair comes closest..
     
  7. Donal
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    Donal Contributing Member

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    Are the stories anything similar? What are you getting sick and upset about - you don't even know that you can't write the story. All that happened is another protagonist has the same name as your one.
     
  8. wolfi
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    wolfi Contributing Member

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    Yeah maybe its the way i posted but i meant to say its not a problem
    (did i not make it clear?)

    sorry if I did not explain :confused:
     
  9. Trilby
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    Trilby Contributing Member Contributor

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    Since your ms has been lying in a draw then the published author had no knowledge of it, therefore the name is coincidental (I know you never said it wasn't)
    Being that the name is out there, your story would be compared with it. Would you want that? is your story as good as the published story?
    I don't think you can copyright a name. (I could be wrong)
    If you can't use another name, then I would forget it and write something else. This may seem harsh, but if you keep writing I'm sure you will come up with a lot more stories.

    Edit second thoughts, you must be able to copyright names, I'm thinking 'Spiderman' etc.
     
  10. Elgaisma
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    Elgaisma Contributing Member Contributor

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    Unless you are suggesting the person stole the name from you then I am unsure what your issue is?

    It would be a little unfair to sue someone based on a conincidence.

    I have seen discussions like this on baby names boards - my aunt's cousin's sister in law stole my baby's name - like you are ever going to meet that person etc.
     
  11. Jonalexher
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    Jonalexher Contributing Member

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    Well I guess you can't really sue him/her, it was just a coincidence like Elgaisma said.
    Is it Gilderoy Lockhart :p? I hate that guy hahaha, just a wild guess.
     
  12. HorusEye
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    HorusEye Contributing Member Contributor

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    Pretty sure Spiderman is a registered trademark. If it wasn't, anyone could make a character named Spiderman.
     
  13. Florent150
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    Florent150 Member

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    I'm not sure if names can be copyright in this way.
     
    Last edited: May 18, 2014
  14. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    1. as noted by several posters above, names can't be copyrighted, period

    2. thus, you can use the name for your title and in the text, as long as the character doesn't resemble the published one physically or in his/her character, back story, etc.

    3. even if it's been trademark protected by the published author, as mickey mouse, superman, spiderman, et al. have, you can still use the name in your title/book... you just can't use it for selling merchandise

    4. however, if your character is similar to the published one, then you may run into some trouble over what is called 'theft of intellectual property'

    5. you should be studying the laws at the source:
    www.uspto.gov
    www.copyright.gov

    6. as has also been noted, if you're still not sure about anything in re this issue, you should consult a literary attorney

    finally, as has been discussed above, there is the problem with readers' perception, which can seriously hamper your ability to find a publisher willing to publish the book... so you may have to find some way to alter the name enough to satisfy them, if you want to see it published...
     
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  15. HeinleinFan
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    HeinleinFan Banned

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    In addition to mammamaia's final point about reader respect, I'm afraid you'll have a hard time getting respect from writers if you try to make a great ballyhoo about a story you abandoned 15 bloody years ago.

    It's unfortunate, but unless it's a huge plot point most names aren't important. Oh, we like to think they are, as writers etching our heartblood onto the page, but if Voldemort had been taken already Rowling would have found an equally awesome villain name and avoided having to give Tom Riddle that weird middle name in the first place.

    You, too, can find another name. And while you're at it, you can finish the story you left at the bottom of your trunk and forgotten since back when I was in kindergarten. Then you'll have forged success from this seeming setback, and gained experience as a writer to boot.
     
  16. Show
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    Show Contributing Member Contributor

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    A name is a name. Lots of characters have the same name. What is the issue?
     
  17. Celia.
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    Celia. Senior Member

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    that must really suck and i am sorry but i would suggest changing the name.
     
  18. JeffS65
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    JeffS65 Contributing Member

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    You need to hold less dear to the name. Even if the name is integral to the story. Thing is; if there is a character/book with the same name, it's too late and not a good move to find a way to keep it and all.

    Instead of spending your time and resources for something that was 15 years old, if you have a compelling story, you need to be in problem solving mode and that is to say that you need to find an alternative.

    You may suggest that there is no alternative but, to be honest, if the story turns on the name of the character, how much of a story is it?

    Not trying to be harsh but I do find it odd that you dust off a story after such a time and are unhappy that someone used the name before you.
     
  19. Bookmommy
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    Bookmommy New Member

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    I'm afraid I have to agree..

    If it is a name instantly recognizable and identifyable with someone else's story, I'd ditch the name. You can come up with another one, just as good as the first. It would be hard to get a novel published using a name that readers would immediately think of another story when they hear it.
     
  20. spklvr
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    spklvr Contributing Member Contributor

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    I'm really curious about what the name is :D

    I'm just spamming, aren't I?
     
  21. SusieQ
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    SusieQ New Member

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    If..

    it is just a name why fret over it? Start over again with a better name than what it appeared to be yours? No worries, life is too short to be bothered by such trival things. I am sorry you feel like that but cheer up it's not too late to begin again.
     
  22. Firelight
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    Firelight New Member

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    I don't know how to respond to any of your posts except to say "thank you" for replying. It is not odd for this after so many years. too many spent unable to function at all, and finally gather the courage to "do or die" and this happens. This is as much a part of me as your own name and life is to you. It is what keeps me going and reason for living. That's why this hit so hard.
     
  23. wolfi
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    wolfi Contributing Member

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    if it means so much you to all the more reason to change it and make it better


    every piece can be improved, yours is no exception

    can you tell us how the name is so important?
    is it because of some sort of blood line?
    is he\she heir to royalty

    there is NEVER just only one way to do something there is a way around this
     
  24. FrankABlissett
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    FrankABlissett Active Member

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    If anything, write it how you want. Keep that version for yourself, and if you find a publisher, they will advise you on whether you need to change the name for their version.

    -Frank
     
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  25. EdFromNY
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    EdFromNY Hope to improve with age Supporter Contributor

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    The worst thing you could do is simply give up the project just because of this. Some things we write because we need to write them. We may think that the writing will only have value if it is published, but the truth is that we have stories we need to express for their own sake. I wholeheartedly agree with Frank. Write it because you need to, and then see how you need to deal with it if/when you have a chance to publish it.

    When I was writing my first novel, I was certain it would be published and that my effort would be wasted if it was not. Well, it wasn't. And when I read it over now, I'm not sure it ever could be without being completely reworked. But it's still a good story and I'm very glad I wrote it. You will be, too.

    Write on!
     

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