1. tonten
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    tonten Senior Member

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    Using a copyrighted name in a book

    Discussion in 'General Writing' started by tonten, Sep 17, 2009.

    Using a trademarked name in a book

    *edit
    Just found out the word is trademarked. Not just copyrighted =(

    I have a gaming username in which I have been using since 1999. It's an ambiguous word I thought of for example:

    whiteword

    Now, the problem is, my username has long been "taken" by a company. They
    ambiguously thought of this word and are now is too, using it as the name for their software. They created their application in 2006.

    I have always planned to use my username for my novel, because the 2 words put together has alot of symbolic meaning, literal meaning, etc that ties into the plot. It's the name of my main character's power.

    I've been developing ideas/working on my novel since 2004. I even had a website up since then with that word listed as my name character's power. It's even archived on webarchives.

    My question is, what are the fair use rules on words. I mean, can I name my main character "Apple" or "Microsoft" or "Beatles"?

    I read the us copyright database, and it says that word is listed as a copyright as a "software" only.

    Can I copyright my name as a fictional character like how JK Rowling does with Harry Potter? I read somewhere you can have 2 copyrights of the same word as long as they apply to different things.

    Am I allowed to make t-shirts with the word, "microsoft", and distribute them or would I be infringing on copyrights?


    Of course, "whiteword" isn't as obvious as microsoft. I did some research long ago and it seems like I can, but I just want to see what people's opinions are. And it seems like also, publishers tend to shy away from anything that has a chance of interfering with copyrights. When I first saw my word used as something as something else, my heart literally broke and it felt like my novel was butchered.

    I am 2 more months away from finishing my book.
     
  2. arron89
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    arron89 Banned

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    If its just a name you're using, I can't imagine it being a problem (so long as there's no way you could be accused of defaming the name). Steve Jobs didn't sue Gwenyth Paltrow for calling her kid Apple. If you sold Microsoft t-shirts, then yes you would be infringing on copyright and Microsoft would sue the pants off you. But calling a character Microsoft (for example, obviously) is fine. As long as its that innocent, and you're not actually satirizing them with a character named Microsoft. And even then, I'm pretty sure that's legally okay, freedom of speech and all that, but its more treacherous water.
     
  3. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Copyright does not apply to names.

    As for trademarks, it's only a trademark infringement in a context in which the name could be reasonably be construed to refer to the trademarked context.

    For example, any shaving product named Gilette would be an infringement of the trademarked name Gillette (note the spelling difference), because the name clearly caises confusion in the same marketting context. But Penn Gillette (of Penn and Teller) doesn't have to change his name of not use it for advertising his act, because it clearly doesn't infringe in the same market space (and wit wouldn't be an issue even if it weren't his birth name).

    But trademark law is much more complicated than copyright law. You should probably check with a literary lawyer to be sure, or choose another name.

    In any case, remember this if nothing else: Copyright and trademark are two entirely different things, geginning with the fact that copyright attaches automatically, and trademarks must be explicitly applied for.
     
  4. CharlieVer
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    CharlieVer New Member Contributor

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    (trademarks, not copyrights)

    I've been seeing all sorts of tee shirts with a "DC symbol" on them.

    I thought, "Wow, there are a lot of loyal fans of the comic book company that produces Superman, Batman, the Flash and the Justice League," until someone told me they make shoes for skateboarding, or something like that...

    Charlie
     
  5. Dermit
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    Dermit Member

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    Write it how you want to. Don't think twice about it. Don't let something like this or any other trivia prevent you from writing what you want to write. Remember, names are an easy thing to change - find and replace all, type in a new name - there, done, takes two minutes.

    But I really wouldn't worry about it. If by chance your work turns out fantastic, and, further down the line, you get yourself a publisher, they will be more than happy to advise you on the subject. It's something I'm sure publishers deal with all the time, and it's in their own interest to not get sued. They'll tell you what to do.

    If it doesn't end up getting published, well, the point is entirely moot then, isn't it? It's really not something to concern yourself with at this stage in the game. Just write it! :)
     
  6. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    follow cog's advice, but keep what dermit says in mind, too...
     
  7. Sophronia
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    Sophronia Member

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    Names don't have copyrights; I think I actually read that somewhere on the copyright.gov website. I imagine if you're using the name for an insanely similar software product to the company's, though, that might be a problem.

    I don't see any problem using such a name for a character, especially since you said the name has special meaning to the character and story. It seems to me that you never intended to steal the name or use it for fraudulent uses.
     
  8. Colonel Marksman
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    Colonel Marksman Member

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    I've read books that name specific, popular brands and titles, without a care about copyrights.

    To teach an Arabic girl about American culture so he could help her blend in, he went into a Seven-Eleven, brought out a bag of M&Ms, a six-pack of Dr. Pepper, and explained the differences between that and Sprite and Coke, and the cultural influences each had. He drove specific cars as they moved around, getting into cars that were easy to steal and break into. On top of that, he named Star Wars and Lord of the Rings.


    Another story I read recently must have mentioned a dozen television shows, every single popular website, books, authors, and a few brands of cars.


    Trust me, all this worry about copyrights etc. is, I think just a big myth for writers. In the past though, I believe movie makers were really worried about it.
     
  9. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    Copyright is not a myth, there is just a lack of understanding as to how it works. Names cannot be copyrighted. Copyright protects original creative works, and is in effect from the moment of conception. It is very important in preventing and dealing with plagiarism, and calling it a myth is just wrong. It's hard law.
     
  10. HorusEye
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    HorusEye Contributing Member Contributor

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    I have to correct one important detail. Copyright is not in effect from the moment of conception, but at the moment of public availability.

    In a sense, the best way to secure your own credits is to get something "out there".

    If someone publishes a book which is 99% identical to something you had kept locked in your drawer for 20 years, you could not possibly claim copyright infringement.
     
  11. CharlieVer
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    CharlieVer New Member Contributor

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    According to copyright.gov website, "Copyright protection subsists from the time the work is created in fixed form."

    So, even if you jotted something in your notebook or on your desktop, it's legally protected, even though not publically available. (You might have problems proving it, but technically, the law protects from that moment.)

    Charlie
     
  12. elfen
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    elfen Member

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    I can't see there really being a problem to you using your name, as long as it wasn't b used in a defamatory way, or to try and gain market share with a product similar to ones being produced. If you did use it, I'd probably (as a sign of courtesy) let the company know I am using it, and WHY I am using it, perhaps by giving a sample extract of the novel, so they can see that no offense is intented
     
  13. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    It is legally protected from the moment you write it down. In the example case, the problems would be, as Charlie said, with the demonstration.
     
  14. CharlieVer
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    CharlieVer New Member Contributor

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    I must point out, however, as there are people of many countries on this site (and on this thread) that copyright law may vary from locale to locale.

    What I say generally refers to the USA.

    Charlie
     
  15. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    And what I say refers to the UK. Though with copyright law, the Berne convention standardises it between countries.

    And Denmark is a signatory to the convention.
     
  16. CharlieVer
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    CharlieVer New Member Contributor

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    It's all an Illuminati plot for world domination!

    (Just kidding;)... cool, I did not know that!)

    Charlie
     
  17. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    No worries. I just thought I'd get it in before Mammamaia did :p
     
  18. HorusEye
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    HorusEye Contributing Member Contributor

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    I read through the copyright law some years back and I'm pretty sure I read what I stated. If anyone has a reference to the actual text it would be wonderful.
     
  19. CharlieVer
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    CharlieVer New Member Contributor

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    Go to copyright.gov

    I quoted it.

    Charlie
     
  20. HorusEye
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    HorusEye Contributing Member Contributor

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    My bad. Sorry for spreading false information. I should not rely so much on my memory. ;)
     
  21. CharlieVer
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    CharlieVer New Member Contributor

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    No problem at all I...

    I'm sorry, I forgot what I was going to say.

    :rolleyes:

    Charlie
     
  22. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    i always get here late, being on the other side of the int'l date line!

    anyway:

    what you need to know and keep in mind is that 'the work' does not mean simply any bits or idea/s you've jotted down, but only refers to a 'completed work'... and yes, that can apply to a first draft, but only when you've a whole story/book/article/whatever...

    the best way to prove you wrote it is to keep all your earliest notes, the first draft, and a 'middle' draft... all of which will show the progression from idea to 'complete work'... none of which anyone who might contest your authorship will be able to produce...

    and yes, any countries that are signatories to the berne convention are likely to have pretty much the same copyright laws in effect...
     
  23. architectus
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    architectus Banned

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    Yeah, but trying writing a novel with a King that can't use the force named Luke Skywalker. Even if the character is nothing like Luke from Star Wars, I think you will have problems.
     
  24. CharlieVer
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    CharlieVer New Member Contributor

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    Actually, the best way is to do what I did:

    Take your first draft and submit it to the copyright office, pay your fee and register your copyright.

    Charlie
     
  25. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    solly, cholly, but that is not the best way, 'cause it doesn't prove a thing and only assures that you can take a case of copyright breach or infringement to court and IF it goes to court and IF you win, you can get legal fees paid and be awarded statutory damages...

    it won't stop anyone from stealing your work and if they do, you'd still have to prove you wrote what you registered the copyright on... and what i said to do is the best way to prove that... the only way, actually, since anyone can send anything in to the copyright office, pay the fee and have it registered in their name, as long as no one has done it before you, with a document of the same form having the same title... they do not read the material, y'know, and do not require proof of ownership, other than stating that it's yours and signing the form...

    also, if you register your first draft, which no professional writer would do, you'd then have to register the final draft, if substantial changes have been made... and pros don't even register their completed works, they let their publishers do that...
     

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