Pay more attention to the differences instead of any similarities. You could probably take any character in literature and liken them to one from another author. Harry Potter is not the only character who was ever a wizard/went to boarding school. Superman is not the only comic book hero who can fly.
Exactly. Whenever I have seen someone argue that _____ is a ripoff of _____, their argument is supported by cherry-picked examples of similarities. The list of differences would be infinitely longer. Unless the person making the argument is upfront about their intent, it is always hard for me to tell if they are being serious or if they are trying to write a humor piece in the style of a Cracked article ("5 reasons why _____ is basically the same story as _____").
Felt like picking your brains with this question. Imagine the scenario: An author is browsing through fanfictions of his/her work for fun when he/she stumbles upon a fanfiction that he/she really likes. The plot is compelling enough that, by God, he/she could take it and write a complete novel about it as either a sequel or a spin-off of the existing series. He/she could take it and develop it, make it stronger. Question: Even though the characters, the setting, the lore, etc. all belong to the author, the plot he/she is reading about kind of...doesn't. It was created by a fan. Would the author have legal right to take that plot created by the fan and use it for his/her own without permission? And to set the control on this scenario, the author found this on FanFiction.Net and the fan who wrote it put up the obligatory disclaimer saying he/she doesn't own any of the author's works, etc. The fan isn't trying to pass any of it as his/her own original piece. That was a thought that just occurred to me now. We've all heard of plagiarism when the fan rips off of the author's work, can the reverse also be true? If so, is there a way for said fan/writer of fanfiction to 'fight back' as it were? Thoughts?
Plagiarism and legality are two separate issues. If the author takes the fan's work and passes it off as his own, I guess that's plagiarism. That doesn't necessarily make it illegal, or even subject to a claim by the fan. In a general sense, ideas like plotlines are not protectable by copyright. If it was very well developed and the author lifted it in substantially the same form, there might be a copyright claim available. There might be other claims apart from copyright as well, to the extent they aren't pre-empted. Cases like the one you are suggesting tend to be fact-specific when it comes to the legalities.
My answer is Storm Constantine, but we'll get back to that in a second.... One major factor that I think is missing from your question is the dynamic of the FanFiction author being tapped by the original author. I mean, you write a compelling Lestat fanfic and Anne Rice comes across it and she emails you to the tune of: "Hey, I really like what you did here and where you went with the character. Wanna' collaborate and make this canon?" Who in their right mind is going to say no to that? Back to Storm Constantine.... Wraeththu fanfic is so immense and popular (stories, games, cosplay, all kinds of shit) that Storm capitalized on this, set up an indi-press, and helps her fanfic fans get their work published.
Interesting, I always thought they were one and the same. It's illegal to plagiarize, that sort of thing. I imagine it'd be difficult for the fan to submit a copyright claim even if there were substantial proof that the author did lift heavily from the well-developed plotline. After all, all that stuff, excluding the plot itself, belongs exclusively to the author. Yeah, I'm not gonna lie, if my favorite author emailed me and said, even if it were simply, "You've found the perfect sequel for my books. I'll be sure to give you credit for this." I would think I'd have died and gone to heaven to use a clichéd phrase. And yeah, if someone like Stephen King asked if I wanted to collaborate with him to make a fan fiction I wrote an actual, legit book, I would say "YES, PLEASE!" I would be out of my goddamned mind to say 'no' to the once-in-a-lifetime opportunity. And Storm Constantine is a genius there. Hopefully, if I ever become published, I can do the same for anyone whose fan fiction impressed me.
Exactly, and I can't imagine why an established original author wouldn't go this route. Stealing from a fan's fanfic has nothing but bad press written all over it, regardless of the actual legalities of who owns what. What the law says and what people think is right do not always go hand in hand. On the other hand, an original author tapping a fan, recognizing their appreciation of the fanfic being written in their original world, and bringing that fanfic over into the light of canon has nothing but good press written all over it.
Imagine that you write a novel, it becomes a hit, you write a sequel, it also becomes a hit, and these novels turn into a series. After a few installments, people have written 100,000+ fanfics, and you are not even done with the series. Looking back on your work and thinking about the best way to move forward, you gather your thoughts and sit down to write the next installment. However, you are not nearly the first person to do this. Hundreds, maybe even thousands, of fans have already moved forward with your series in the ways they thought were best, and they have posted their work online. At this point, the chance that what you come up with does not uncannily resemble one fan or another's work is pretty remote. There are authors who fear this very scenario because they do not want fans suing them (or at least giving them bad press) for copyright infringement. Some authors (I think George RR Martin is the first author I can remember making this argument) ask fans not to write fanfiction for this reason. Other authors tolerate fanfiction but avoid reading it for fear of subconsciously copying elements from it. So, there are authors who have an issue with fanfiction because they think the answer to "Could reversal plagiarism copyright infringement be possible?" question is "yes". The reality is that it depends on how much is copied. In US copyright law in general, there is a concept of substantial similarity. If all you do is slightly reword each sentence of a book, then you can be found guilty of infringement. On the other hand, if you make your work "different enough", then you will not be found guilty of infringement. It depends on the "amount" of original "substance" that is copied, which is difficult to quantify and impossible to quantify non-arbitrarily, but the courts still try to quantify it. I assume a fanfiction copyright case would work the same way: the court would distill the fanfic down to the original "substance" in it (original plot, original characters, etc.) and see how much of it is copied by the canon author. So it is not a question of whether or not the canon author has the legal right to use the fan's plot, but a question of how much "substance" was created by the fan and then copied by the canon author. But I cannot say for sure because I have never heard of this kind of case actually occurring. I am just making the reasonable assumption that something being fanfiction does not completely void the fanfic author's over all the creative "substance" within the work, and applying general principles under that assumption.
Copyright is an artificial monopoly on the distribution of a creative work. Copyright infringement is to distribute a creative work in a way that breaks this artificial monopoly. (For example, by downloading a song, removing the DRM, and making it available as a torrent.) Plagiarism is to claim credit falsely for a creative work. (For example, by reading a scientific paper, taking all the information from it, writing a paper that presents the same information without citing your source, and putting your name on the paper to give the impression that you did the research.) Distribution and credit are separate concepts. There are laws about distribution but not about giving credit.
My understanding is that if Jane creates something that uses John's copyrighted work as a component, but also includes creative work by Jane, that work is not wholly owned by either John or Jane, and neither of them could publish it without the other's consent. (Ignoring fair use factors, like Jane parodying or reviewing John's work.) So to me the issue is whether the original author is using any element of the fan author's work that would normally be copyrightable. The exact words certainly would be copyrightable, as would any art. I believe that the plot would not. Characters created by the original author are still owned by the author. What about characters created by the fan and placed in the author's world? Assuming that characters are copyrightable (a fact that I always struggle to accept, but apparently that's just my problem) I'd think that the original author could not use them without the fan's permission.
One thing I do wonder is what the consequence of infringement would be. The normal consequence is that the infringer must pay damages to the infringee, right? In this case, how much would the infringer pay the infringee, and what exactly are the damages that the infringer would have to pay for? All those copies of the fanfic that did not get sold because the people who would have read them were reading the infringer's work instead? The fees that the infringee could have charged the infringer in exchange for the infringee's consent to use the material? (And yet the fanfic author is not getting sued by the same logic for using material without the consent of the one who created that material?) Dilemmas like this (there are countless others, regarding patents as well as copyright) are a symptom of the excessive expansion of intellectual property law over the last few centuries. Copyright used to serve a pragmatic, clearly defined, and very reasonable purpose -- incentivizing creative expression by giving the creator an opportunity to sell copies of the expression if so desired -- but it has grown into something unrecognizable and largely philosophically indefensible.
@daemon if the copyright owner took the proper steps, then in the U.S. copyright allows for statutory damages. In other words, you don't have to prove damages to recover monetary damages.
Sorry if there was a better place for this post, but it felt fairly general to me... First, I am curious what my restrictions are with using words that may or may not be registered trademarks to things that already exist as a name for my characters or factions. Also, is it true that names cannot be copy written, and so I shouldn’t be worrying about being %100 original in that regard? Here’s my conundrum… As far as I am aware, names cannot be copy written, which gives me some comfort except that I prefer the process of coming up with my own (supposedly) totally original words and using them as names for characters and factions and races. I actually entertained for a while that I had come up with completely original titles, until I googled them to find they were already well-established. It seems that every single combination of vowels and consonants in the English language up to eight letters has long since been discovered. Since there is no use whatsoever in maintaining secrecy about what the words I wanted to use are, they are Asyra, and Voore, which were going to be names for good guy/bad guy factions in my story. You can check out at least one of what are already called those things… www.voore.ro www.asyra.co.uk Ironically, the trademark word for my good guys is an electronic health screening machine, and the trademark word for my bad guys is an e-cigarette…go figure.
In other words, I want to know if I can name a fictional character, faction, or race a name that already exists somewhere in the world as a registered trademark. If it is used as a proper name, do I get around the fact that it is registered elsewhere? Sorry, I couldn't find anywhere to edit my first post, and it occurred to me it might be a touch vague... Thanks for your time, and any help.
Hi, It's tricky. First no - proper names are not copyright protected. The same applies to titles. But they can be trademarked. Second what is trademarked is protected - but in a different manner to copyright. First you need to go to the USPTO and do a search to see if they have been trademarked, if the trademark is still current, and then to see what they're about. Mostly trademarks act to protect someone from having their name - whatever it may be - from being ripped off. So if the trademark for Voore? pertains to an eciggie than the danger they want to avoid is either having a competitor making eciggies using the same name and thus competing with them and confusing the market, or second anything that brings their name into disrepute. Since I assume that you're writing a book not making a brand of eciggies and trying to ride on their tailcoats then the first is not an issue. The second might be. For example if Voore is such an evil, unpleasant race, that could impact negatively on their brand recognition and they will defend that. In simple terms you can't write a book titled "Alien". It is trademarked as including books and movies and other things. And the company that owns the trademark would take one look at your work and say - he's trying to sell books by using our trademarked title. You also can't disparage a trademark without repercussions. Imagine if BMW were to read about a race of truly horrible / foul disgusting orcs called BMW's in a book. They would get upset even though the BMW's in question are not cars. Easiest and safest option by far is to change the name. So voore becomes eg vooren. Then go and do a search through the USPTO for it, see if it's there, and if not start doing a find and replace. Cheers, Greg.
If the law prevented people from drawing negative attention to a brand, then unfavorable product reviews would be illegal.
U.S. law has special provisions for trademark tarnishment, but it only applies to famous marks and wouldn't generally apply to a bad product review.
Hi Daemon, A bad product review is a different kettle of fish. It is opinion and you are mostly protected in giving it as long as your opinion is genuine. Where we see cases of litigation against bad reviews occurring - and there have been a few recently - it's because there is reason to believe that the reviews have not been genuine. Disparaging a trademarked name is a different thing. Here we aren't talking about a bad product review. Here we're talking about the equivalent in legal terms of calling someone names. Let's return to the BMW scenario. Here we aren't talking about someone buying a car and finding it lacking in some way and reporting that opinion. We're talking about someone simply taking the name and saying something bad about it that may well have nothing to do with the quality of the product in question, but which still may be perceived by readers as a negative connection to it. Think of it as you would your own name and pretend your name is important to your career as in the case of an actor etc. Now say someone said to a friend "I know that daemon guy, and he's a serial pervert pedophile". Legally you would have little defence against that, few ways of stopping him even though you might be upset. You could sue them of course for slander and libel if the allegation was incorrect and not genuinely given. But that's your lot. Now say instead that some author - pick your favourite - wrote a book about a character named Daemon who happened to be a pervert serial pedophile etc, and worse that the book gained traction and soon everyone began to associate your name with the character's. Your illustrious acting carreer has just died - because who would want to watch a movie staring someone who is by nothing more than a name, a serial pervert pedophile. Who would hire an actor with that name? And it's not because of your acting or anyone's opinion about your acting. It's not because of anything you've done. It's not even legitimate opinion - or in fact opinion at all. You haven't been slandered or libelled because they haven't said anything about you. But you've still had your name dragged through the mud. Wouldn't you want to do something about that? And technically if you've trademarked your name you could. You could sue. Not for slander or libel or giving false reviews. For simply damaging your name which is in fact your livelihood as an actor. That's what a trademark allows companies to do for their products. Protect their good names - names which are often the backbone of their reputation etc - against disparagement. Even disparagement that is unwitting and not directly connected to to their products. I should end this by pointing out that I am not a lawyer, so take this post in that light, and if you need advice on this issue, you really should consult one. Cheers, Greg.
I think @psychotick is crediting the trademark generation with too much power. If you include a mention of Coca-Cola, the drink, in a negative light you are quite likely to get a visit from a lawyer. If you mention Coca-Cola, the replacement for anthracite in the power stations of Mars, in a negative light, that visit is a LOT less likely. If you mention Voore, the e-cigarette in a negative light = lawyer (maybe) If you mention Voore, the evil world-destroying tyrants = a lot less likely. And the reason I say maybe about that lawyer's visit is that I'd be very surprised if a Romanian e-cig had gone to the time, trouble and expense of trademarking their name in the US, unless they have very big ideas about future growth. I'm also sceptical about Alien being trademarked - googling "is Alien trademarked" gets you hits on "Alien:Isolation", but nothing on the original.
Keep in mind, as I said above, that for a federal claim of tarnishment, the trademark has to be famous. Not anyone with a registered mark can bring that claim. Other trademark owners may be able to state or common law causes of action.
@Shadowfax "Alien" is definitely protected by trademark. More than one, in fact. http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:lqgon4.4.2 http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:lqgon4.4.1 Both of those filings have been renewed in the last couple of years. 20th Century Fox may well have additional trademarks for the name, some of which may be licensed out for other product areas. Never rely on a Google search to tell you if a name or phrase has trademark protection. Just search it through the USPTO (for the U.S.) or whatever country database you are interested in.
In actuality, the chance is astronomically high that what you would write would be completely distinct from anything anyone wrote. Exhibit A would be J.K.Rowling's Book 5, 6, and 7. Each time literally 100,000+ stories were written for them precisely by fanfiction writers trying to predict what she would do, and they all were miserably off. Nothing any of them wrote remotely resembled what the creator of the series came up with. The result would be the same for any author in that class such as G.R.R.M, especially given the greater complexity of the setting.
If someone likes an authors story enough to write a fan fiction of it, I guess he or she would probably feel honored that the author chose to use it, since (from what I've heard) you can't publish fan fiction in the traditional way anyway. Just my two cents. But if I was the author, I would probably ask the other writer first. Don't want to piss my fans off by acting like an asshole! But in reality I'm not sure I personally would ever do such a thing as using somebody else plot anyway.
I wholeheartedly disagree with this statement. Your example of Rowling's H.P is an example in hindsight that might have turned out well. Claiming at first that there were 100,000+ fanfics written and then claiming that none incorporated the same elements as Rowlings final work is just off because a) you cannot possibly have read all of these fanfics, b) neither can Rowling, and c) when there are so many authors of fanfics out there, and there might have been a few that did get it right, who says they spoke out about it? And then again, just because in this case Rowling came up with something entirely different doesn't mean it's not possible. Your claim of chances being "astronomically high" just makes no sense as it all depends on the complexity of the story, the amount of characters involved, the paths the story already took (and might take in the future based on that) and numerous other factors. Yes, chances might be slim that someone will come up with exactly the same thing as an author, but when you have a series read by tens of thousands if not millions, there is a good chance that 1 of those cleverly written fanfics out there has the same twists and turns. I'm just guessing here, but 90% of plot-twists come to be from a logical process. It can be anything leading up to it. I for one have never written a book were a hero is battling his way through intrigues and combat, only to simply be killed by a boulder that just so happens to be fall from the sky. Since fanfics tend to be set in the canon and world of the books, such good fanfics tend to "connect" to what has already happened and thus what might happen. There may be a million possible scenario's coming out from what has already been established, but if there are also thousands of people that are into it and thinking of ways to either further a plot or take a side-route, there is a good chance that it might indeed be a scenario contemplated by the author. Now ofcourse, another problem with this is that as such a succesful author you cannot possibly read it all, and you are always at risk of something like this happening. I'm no legal expert, but I guess that what I said above would be quite a solid argument against any claim you might get. Needless to say that honor and politeness dictate that should such an unknowing author find out about this, later on or in during the writing process, credits should be due. This is basically a reversed scenario of what the OP asked, and to remain on topic; I think refraining from doing this or instead doing it might both have their pro's and con's. I think that as an author you should always attempt to surprise your readers, and a very popular fanfic being made canon would kind of take that away for a lot of your "hardcore" fans. Then again, showing your appreciation of your fans' dedication and cooperating with them to further the story could also endear you to them as a caring author who is likewise dedicated to his/her fanbase. I can't comment on the legal side of this, as I both have no knowledge of them and I think most has been said already.
