1. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    Using a known name

    Discussion in 'Character Development' started by Thomas Kitchen, Oct 8, 2013.

    Hi all,

    First of all, I hope this is in the right sub-forum; I did spend a bit of time wondering where it should go, and went with my gut. I'm sorry if it's not in the correct place, though!

    Now, on with the question. I'm writing a story which will involve an automaton named Pinocchio, or so I hope. I was just wondering, I know book titles are not copyrightable (if that's a word), but are names, even if they're famous - Harry Potter, Gandalf, etc.?

    The only similarities between the two would be having them created by a man, although he won't be named Geppetto, or even anything close. Pinocchio won't be a puppet, but a robot, and there won't be anything to do with lies and so forth. It really is just the name and the fact he was created, but I think having him named Pinocchio would work for the story I have in mind.

    If I can't use the name, could I change it by, say, using alternate spelling (Penokio or Pinokkhio) or by adding numbers or symbols inbetween the letters (Pi-33-nocchio or Pi~noc~chio), or even adding capitals (PiNOCchio)?

    Thanks for any help. I think I'm just reading too much into this. :)
     
  2. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Names aren't copyrightable, but they can be trademarked. Ordinary, I wouldn't worry about a name from a story that old, but Disney Studios had their paws on it...
     
  3. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    It's a story I'm writing for the annual sci-fi contest, if that makes any difference. Should I contact Disney's legal correspondent, or is that not worth the fuss?
     
  4. ManOrAstroMan
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    ManOrAstroMan Magical Space Detective Contributor

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    Don't. Disney doesn't own Pinnocchio any more than they own Sleeping Beauty or Snow White. They have their version of the character, so as long as you leave that alone, you're fine. Pinnocchio has appeared as a character in the Shrek movies, in Sesame Street, in countless other cartoons and various printings and variations of the Collodi book. He was even a killer puppet in a horror movie.
    You and your robot are safe.
     
  5. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    I knew I should have put a winkie in that post. I was being somewhat sardonic, and expected a chuckle in response.
     
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  6. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    Ah! It's actually quite funny when taken as a joke. ;) I'll go ahead and use the name, then. Thank you both for your help.
     
  7. ScaryMonster
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    ScaryMonster Active Member

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    What about a character like Captain Nemo from 20,000 Leagues under the sea? And other characters from old stories. I know that Alan Moore and Kevin O'Naill used a number of them in "The League of Extraordinary Gentlemen" comic book series.
     
  8. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    verne's works are also in the public domain, so his characters are fair game... just make sure you don't use characters from works still under copyright, if you want to stay on the safe side...
     
  9. ScaryMonster
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    ScaryMonster Active Member

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    So where does that leave fan fiction? Has anyone written fan fiction story that has been as successful as the original book it was based on? If it makes money does the original author have the right to claim a share of the profits?
     
  10. B93
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    B93 Active Member

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    I'm not a l*wyer, but my impression is that fan fiction is on very shaky ground to begin with, and it continues to exist because it's just usually not worth the trouble for the trademark holder to pursue action against it. If it makes any money the holder of the trademark may come after the writer.

    Disney was mentioned above. They are among the most active in pursuing infringements. If you use any character they put in one of their productions, tread lightly. Keep the character entirely to its prior public domain version or your own embellishment, and don't dare use any characteristic or phrase that was added by Disney.
     
  11. jazzabel
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    jazzabel Contributing Member Contributor

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    Yeah, trademarking would probably get in your way. The point is, these are famous characters and by using their names, you are automatically gaining advantage with readers. That's not fair, and you shouldn't really be able to do it for free. My suggestion is, think of your own names and you won't have a problem.
     
  12. Burlbird
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    Burlbird Contributing Member Contributor

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    @B93 actually, fanfiction can exist and can be writen for private use by anyone, and there is no Thought Police to go through your private writing, whatever you write about. You are talking, I guess, not of existence but of fanfiction publishing, which is in most cases covered by fair use - basically, if you don't make money out if it and if you stick with the obligatory disclaimer ("Characters and situations belong to this company etc") not even Disney can harm you... I mean, Disney owns Star Wars now, and Star Wars fanfiction, fan-RPGs, fan-films and fan-art is the single largest pile of fan-anything available online (except porn) ... It would be virtually impossible for Disney to legaly pursue every (or any) single Star Wars fanfiction author, because that witch-hunt would need to grow and cover the whole freakin' community, literally tens of thousands of websites and millions of fans... Not to mention the fact that Lucasfilm even had an annual fan-film award - all in the name of fair use.
     
  13. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Disney has a number of trademark registrations for "Pinocchio," including registrations relating to fictional stories. Public domain doesn't really apply here. That said, you're not really using the name in a trademark sense just by having a robot with that name. If you had the name in the title, I think it would be a little more problematic. Keep in mind, though, that Disney can be fairly litigious about names it thinks it owns, even when they are trying to assert rights beyond that which they actually have. If they were to come after you, it would cost a lot of money to defend the suit, even if you end up winning.

    But from a purely legal standpoint as it relates to trademark infringement, I think you're on pretty safe ground if all you are doing is having a robot character with that name.
     
  14. Burlbird
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    Burlbird Contributing Member Contributor

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    @Steerpike wouldn't the OP's situation also count as pastiche? because by using the name, he would also recall the original, well-known story, in another context...

    A propos: I am wondering how are things like homages and intertextuality in whole treated in US?
     
  15. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    @Steerpike - I have Pinocchio's name in the title: "The Pinocchio Experiment". Should I change this, just to keep everyone (Disney) happy?
     
  16. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Putting it in the title is closer to running afoul of trademarks they have. Personally, I think you'd have good arguments that the use is permissible. It depends on how risk averse you are :)
     
  17. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    There are all kinds of other issues that could come into play - satire, parody, and the like (which are protected by the First Amendment in the U.S.). There are potential Fair Use arguments, perhaps, but those are fact-specific and harder to rely on with commercial fiction (though not impossible). The problem you run into is that some of these giant corporations will go after people even when there really isn't any infringement, and then you're stuck defending the action brought against you. I'm in the middle of one such case right now, and it is an expensive proposition.

    Unless the book is a runaway success, it isn't even likely to get on Disney's radar. If it does and if they decide they want to take action for some reason, it's going to be expensive. So it comes down not only to "can I do this" (where the answer might well be yes), but also to a cost/benefit analysis if the trademark owner decides to take issue.
     
  18. Burlbird
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    Burlbird Contributing Member Contributor

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    F*ck Disney :) a few google clicks revealed that, while the image of Pinocchio, as drawns by Disney, is © Disney Enterprises, they failed (thank you Jiminy Cricket!!!) to acquire rights for Alice in Wonderland, Snow White and Pinocchio, among others..... The actual owner of the Pinocchio trademark name is National Carlo Collodi Foundation (Fondazione Nazionale Carlo Collodi) Send them an email and film a new freakin' Pinocchio movie!! :D
     
  19. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    I think it'll be okay to use the name and title...I mean, it's only for the Writing Forums (no offence, there!), so as you say, chances are it'll never even be noticed. However, if I think of a better title with no name, then all the better.

    Should I use the name Pinocchio at all? The main reason I used it is because the story does sound a little similar to it, and to not put th name in makes me feel like readers would say, "ugh, this is such a rip-off of Pinocchio." It's really not; the actual story is extremely different, but I would feel that way.

    Any chance I could send it to you to have a look at, Steerpike, for you to check if everything's above board? :)
     
  20. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    That's not true, at least not according to the U.S. Patent & Trademark Office records, which shows a number of "Pinocchio" trademarks owned by Disney.
     
  21. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I'm happy to take a look. I expect my comments will be pretty much the same as those above. As you said, the chances of being noticed in what you're doing are minimal, and there are defenses available. Disney can be a bit heavy-handed, but you have to warrant their attention first :)
     
  22. Thomas Kitchen
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    Thomas Kitchen Proofreader in the Making Contributor

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    Thanks! Obviously it's not ready yet, but I'll get in touch. Your help is always much appreciated.
     
  23. ScaryMonster
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    I looked it up and whilst its true that most of his work is now public domain, one recently translated work (French to English) "Paris in the 20th Century" is still copyrighted until 2020. So I guess its worth checking these things out if you want to go down that road.

    But copyright laws are different from country to country a case in point is H.P Lovecraft.
    The Question centred around whether copyrights for Lovecraft's works were ever renewed under the terms of the U.S. Copyright Act of 1976 for works created prior to January 1, 1978.

    The problem comes from the fact that before the Copyright Act of 1976 the number of years a work was copyrighted in the U.S. was based on publication rather than life of the author plus a certain number of years and that it was only good for 28 years with one renewal for an additional 28 years.

    The Copyright Act of 1976 retroactively extended the renewal period for all works to a period of 47 years and the Sonny Bono Copyright Term Extension Act of 1998 added another 20 years to that, for a total of 95 years from publication.

    I'm actually unsure if his works are public domain or not because, R. H. Barlow who was executor of his literary estate and inexperienced in these sort of things might not have renewed the copyright after 28 years.
    August Derleth, an older and more established writer than Barlow, vied for control of the literary estate. One result of these conflicts was the legal confusion over who owned what copyrights. My guess is that all these works are now public domain because I can find no mention of the rights being renewed after 28 years.

    The European Union Directive on harmonising the term of copyright protection of 1993 extended the copyrights to 70 years after the author's death. So, all works of Lovecraft published during his lifetime, became public domain in all 27 European Union countries on 1 January in 2008.


    Well, apparently you can do it if the character is public domain. Think of all the fantasy novels you've read that feature known mythological characters. Fan fiction of more resent books I think is a bit more problematic. I'm interested in this from a publishing perspective, say for example if a writer like J.K Rowlings sold the literary rights to the Harry Potter franchise. Is it wrong for the new owners to employ other writers to write new books based on the original ones. Is it cheating?
    As business people they know that most of the readers who loved the original books will probably buy at least one of the new versions. Whether they ultimately think these books are any good or not is moot.
    In financial terms it makes a lot of sense. I recently read a preclude to "Shibumi," by Trevanian.
    It was written by Don Winslow and called "Satori. "
    I would never had read anything by Don Winslow if he hadn't taken over the Trevanian character. And down in the bowls of Amazon.com a few more cash registers went Ca-ching! Because they wanted to milk this franchise a little more.
     
    Last edited: Oct 11, 2013
  24. Burlbird
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    Burlbird Contributing Member Contributor

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    @Steerpike yeah, ™ but no © :) I found the name Pinocchio "owned" by a toiler paper company, pizza delivery, ice cream company, marionette theater, canned tomato factory, a children shoes company, etc... Disney can make toys, bath towels and cookiee jars using that name... Filmation seems to have registred far more uses of the name than Dusney (and I can't even remember their Pinocchio cartoon :p)

    Judging by Disney's actions in recent years, I'm quite convinced they'll try to legaly own the name Jehova one day :D
     
  25. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    You can't really have a copyright on a name. It's the trademark that is important.
     

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