1. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    Legal Question on Copy/Trade Mark

    Discussion in 'Publishing' started by GuardianWynn, Jun 17, 2015.

    I was having art work done. The artist was drawing a movie theater and randomly added a character from a movie on the screen in the background.

    Is that okay? In the sense that if I wanted to use the picture in something like a book.

    Also general information. Like if it isn't okay to use it in a picture is it also not alright to use it in text? Like mentioning the title of the movie in text?

    I know some of this counts as fair use(okay I think) and I figured you guys would know better.

    The core question is when is it and when isn't it alright?

    Thank you for the advice.
     
  2. BayView
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    BayView Contributing Member Contributor

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    Is it an animated character from the movie? Like, did your artist draw Mickey Mouse, or Mickey Rourke?

    The Mouse is right out. The Rourke? I'm not sure.
     
  3. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    It was a animated character.

    The mouse is right out? Huh?
     
  4. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If you're going to use it in a book and it is an animated character owned by some of the big studios like ABC/Disney or Warner Bros. you are going to run into trouble.
     
  5. BayView
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    BayView Contributing Member Contributor

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    Animated characters are copyrighted, just like a writer's words are. Somebody drew them, somebody owns the rights to that drawing. Your artist can't copy someone else's work without violating copyright. It's right out = not allowed.
     
  6. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    Would that apply to brand names?

    Like if I wrote a character ate a bowl of corn flakes. Is that just as much of a nope?
     
  7. Stacy C
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    Stacy C Banned

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    'Corn flakes' isn't copyrighted or trademarked. 'Kellogg's Corn Flakes' would be.
     
  8. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    So a book can't write Kellogg's corn flakes without permission either?

    Sounds like it makes a scene in a book about shopping complicated
     
  9. The Mad Regent
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    The Mad Regent Contributing Member

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    As far as I know, you could write that someone ate a bowl of Kellogg's Corn Flakes and you're not stepping over any legal lines. If anything, you're giving them free advertisement.

    On the other hand, if you were to take Kellogg's Corn Flakes and refer to them as your creation then you're crossing into corporate theft.

    I'm not 100% sure, however, but I can't see any reason why it would be deemed as illegal just to state a brand in a story.
     
    Last edited: Jun 18, 2015
  10. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    CORN FLAKES is a registered trademark, but it is for a line of clothing, not the cereal :)
     
  11. Nicoel
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    Nicoel Contributing Member

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    I've always wondered that. I refer to my characters going to "Walmart" as well. Is that alright?
     
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  12. J_Downloading
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    J_Downloading Member

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    Gross
     
  13. Stacy C
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    Stacy C Banned

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    I didn't know that, but if a character refers to eating a bowl of corn flakes, that wouldn't be a violation, would it? If so, we need a serious reset of trademark law.
     
  14. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    No, it wouldn't be.
     
  15. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    Still mildly unclear of the line.

    I mean does that mean saying they ate kellogs corn flakes is off limits?

    What about saying a kid was watching looney toons?

    Or going to wallmart.

    If some aren't alright but others are how is one to know the difference?

    I thought fair use covered some of this. Like I thought saying "My kid is watching micky mouse" would be fine. While writing micky mouse saying something would be over the line. As it is just referencing that he exists and if it is supposed to be earth you are writing in. He would after all exist.


    Sorry if bothering. Just suddenly very curious. lol
     
  16. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Bear in mind the difference between trademark and copyright as well. But the most important thing to remember is that you're asking a bunch of non-lawyers about legal issues - which means our advice/answers are not to be taken as gospel.

    For the basics, go here: http://www.copyright.gov/

    If you have more questions after carefully perusing their website, and have definitely decided you want something in particular in your story, call an attorney.
     
  17. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    For purposes of actually publishing, talk to a lawyer.

    For purposes of writing your first draft and wondering if you're completely wasting your time and will have to rewrite, I think it's usually safe to refer to brands and trademarks, as long as you are not in any way acting as if you own the trademark or as if the trademark is vouching for your product.

    So your character can probably eat Kellog's Corn Flakes and go to Walmart and wear Keds.

    Your book probably can't be titled "Kellog's Corn Flakes." Actually, "can't" may be an overstatement; there's the question of what's legal, and what will attract the unwelcome attentions of well-paid lawyers. I would try to avoid both.

    On the "unwelcome attentions" grounds, I would strongly recommend against your character getting food poisoning from said cornflakes.
     
  18. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    I actually didn't even have an case of this beyond the art(Which is being edited to remove the problem part). Just the art got me thinking. Then I was curious. I also figured I couldn't be the first person to wonder this. I figured in addition to learning I thought it would attract other people that didn't know and they would then learn too. Thanks for the replies everyone.
     
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  19. rincewind31
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    rincewind31 Member

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    Kellog's aren't going to complain about you having characters eating their cornflakes. Not unless one of them chokes to death on a flake or starts throwing up immediately afterwards.
     
  20. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    I agree but the core of the question was not just that one case. It was also where the lines are drawn. What writers should consider fine and not worry about and what writers should know they can't do.

    I guess it may have been a complicated question. I just figured one of the veterans on here probably knew.
     
  21. rincewind31
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    rincewind31 Member

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    I think writers get too caught in legalities sometime. Most things are ok but If in doubt just don't do it. There's usually an easy way around it.
     
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  22. Vandor76
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    Vandor76 Contributing Member

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    Copyright protects something you have created (writing, drawing, music, etc.) and ensures that others can't use it without your permission. A drawing of an animated movie character clearly falls into this category. Human actors are not "copyrighted" but they have personal rights that do not allow you to use their names/faces in your work.

    The line you mention is drawn between copyright violation and fair use ( https://en.wikipedia.org/wiki/Fair_use ). The latter is basically a limitation of the copyright to allow the use of the material without permission from the author.
    Fair use is a bit subjective and is usually examined along the following guidelines :
    1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2) the nature of the copyrighted work;
    3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4) the effect of the use upon the potential market for or value of the copyrighted work.

    So you can't use Mickey Mouse's fame to draw attention to your own work (like writing a novel titled "Mickey Mouse in Space") but you can have a line in your novel that says something like "The kids were watching Mickey Mouse on TV".
    You can do this because you are writing about an everyday situation and use the name only to give a more natural feel to the scene, not to get more attention/profit ( #1 ). Also Mickey Mouse is widely known and has become part of the culture, people speak about him (at least sometimes) so mentioning him in a book is just mimicking real life ( #2 ). The amount and substantiality of the use is very small so it has a small (in this case no) effect on the value of your work ( #3 ) and it does not have a negative effect on Disney's market or value of their work ( #4 )

    Trademarks are for protecting products from counterfeiting, like cornflakes, clothing, cars, cigarettes, computers and other products with names starting with 'c' (or other letters). You can't sell cornflakes called Kellog's, however you can sell for example heavy industrial machines under that name.
    Fair use also applies here ( https://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law) ) and it seems that "A nonowner may also use a trademark nominatively—to refer to the actual trademarked product or its source." -> your MC is definitely allowed to eat Kellog's cornflakes, drink Coca Cola and drive a Ford Mustang.

    A third thing to mention is tribute and fanfiction : if you are a big Star Wars fan, your main character can organize a date to the entrance of the Museum of the Third Millennium in the Falcon Center and you definitely don't have to worry about George Lucas Disney (again?) filing a lawsuit against you.
    If you are an even bigger SW fan you can write an entire blog with short stories set in the Star Wars universe and no one will sue you (although this can get risky if the blog starts to have a lot of visitors and you earn a lot of money from the adverts)

    Hope this makes sense.
     
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  23. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I wouldn't go that far. I've been on the receiving end of cease and desist letters on behalf of clients from studios like Warner Bros and Disney regarding uses that are obscure, limited, and aren't bringing any revenue. They even sent out cease and desist letters, and at least in one case pursued legal action, in a case where the action complained about wasn't even a violation (in my view). But the studio buried the client in legal costs until they dropped it.

    It's a mistake to make categorical statements like this when dealing with these huge entities, and whether they will or will not take action even if they have a bad case. When I worked for large firms, I was on the other side of the issue and we often took action against parties making minimal uses that were generating no revenue and not hurting our market.

    Being able to win a lawsuit is one thing. Being able to spend half a million dollars to go all the way through trial and prove you're in the right is another thing entirely.
     
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  24. ToeKneeBlack
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    ToeKneeBlack Contributing Member Contributor

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    I've skirted around this by having a story set 200 years in the future - few if any of today's big names are still around, resulting in new product names which I'm free to treat / mistreat in any way I need to make the story work.
     
  25. GuardianWynn
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    GuardianWynn Contributing Member Contributor

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    LOL my story is also set about 200 years ish in the future.
    Thank you for bringing valuable input here. :)
     

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