I know this could be a loaded question, but supposing that mothman does NOT exist, would the creature be copyrighted, or would I be free to use it in a story I'm writing? Thanks!
a literary/film character can't be copyrighted, though it can be trademark protected, as batman, superman and other superheroes are... however, 'mothman' is a mythical creature of long standing, not just something created for the movies or a novel... so anyone can use their own version of the thing in their own writings without a problem... that said, since the movies about 'mothman' are copyrighted works, you could run into legal trouble with their producers, if you use any specific and unique aspects of the characters they created, without their permission... same goes for any taken from novels/short stories...
COOL! Thanks! I need a generic soldier for the enemy in my story and I wanted to use an American creature (plus, using orcs would make me seem like I was trying too hard to be the American Tolkien...). And I've only read about the creature in cryptid encyclopedias and such, so I suppose there's little danger I'll rip off another artist. Btw, what's the difference between trademark and copyright?
Characters can, in fact, have copyright protection. That's the prevailing viewpoint and goes back to at least the 1930s. The character has to be very well developed, and courts look at whether the character has been developed enough to warrant the character itself as protected by copyright, or whether it is only the expression in a given work that is protected. One text, analyzing the state of copyright protection for literary characters at the time, stated it like this: "A literary character can be said to have a distinctive personality, and thus to be protectable, when it has been delineated to the point at which its behavior is relatively predictable so that when placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising." Paul Goldstein, Copyright: Principles, Law And Practice, ' 2.7.2 at 128 (1989). I wouldn't hold a court to sticking to the test above, but that's one take on it. One example of a character that I believe was found to have copyright protection is Holden Caulfield, from Catcher in the Rye. The court issued an injunction of an unauthorized sequel, in part because it found that Salinger has copyright in the Caulfield character. The case ending up settling later. Where you draw the line is rather vague, and the line seems to have shifted over the years. As for copyright v. trademark - copyright protects original works set down in a tangible medium of expression. It protects against copying, not against independent creation. Trademarks serve to identify the source or origin of goods and services. Almost anything can be a trademark, and the standard for infringing it isn't whether it was copied, but whether it is confusingly similar (in other words, is your trademark similar enough in the minds of the public to another trademark that they'll confuse the two). It doesn't matter whether you independently created the mark or not. Think about an adaptation of the movie The Avengers in novel form. The novel itself, the written words on the page, are protected by copyright. The Marvel logo on the cover is a trademark. To infringe the copyright, you'd have to copy the words in the book (or passages, or make a derivative work, but lets keep this simple for purposes of explanation). If you put the Marvel logo on any book, you'd be infringing the trademark. Make sense? I probably wouldn't worry much over the Mothman as a character or monster in a story. If you have illustrations that copy or are based on other artists illustrations, then there is a copyright issue.
You need to consult with a literary attorney. Your question, though simple on the surface, requires detailed knowledge of what you are attempting, and some level of research.
In that case, I'm probably going to go with windigo foot soldiers. Older, so less likely to run into a problem. Plus, if a certain myth I've heard is really a myth and not a recent author's embellishment, it'll fit really well into the story.
