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Yet Another Copyright Question

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I am currently working with EDI on his old-school-style adventure game The Lost City of Malathedra. We're getting ready to re-lanuch the website and forums, etc... and we were thinking of using classic adventure game characters for user ranks on our forums based on their "social status" i.e. New users would get Larry Laffer (unemployed failed playboy from Leisure Suit Larry), going up to Roger Wilco (Janitor from Space Quest), Guybrush Threepwood (Mighty Pirate - Monkey island) all the way up to King Graham (Kings Quest Series). Would this be okay under fair use or should we come up with an alternate ranking scheme?

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Original post by linternet
we were thinking of using classic adventure game characters for user ranks

Sounds like a bad idea to me.
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Would this be okay under fair use

The way you would learn the answer would be "in court" (during the lawsuit action). How much money do you want to spend to find the answer?
Which was an oblique way of saying "fair use is determined by judges when defendants use it as a defense."
I think you can come up with a non-infringing ranking system if you put your minds to it.

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Original post by Marmin
Just a tip, Why not make the names original, and not have any copyright problems.


We can, and, as opinions from here and other sources don't seem to see this as clear-cut fair use, we likely will (if we don't get permssion).

However, fair use is a provision for valid use of copyrighted material under certain conditions and, while erring on the side of caution is (in copyright matters especially) generally advisable, I'm not sure it's desirable to be afraid to apply fair use when a good faith effort is made to comply with the provision.

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Original post by Tom Sloper
The way you would learn the answer would be "in court" (during the lawsuit action). How much money do you want to spend to find the answer?
Which was an oblique way of saying "fair use is determined by judges when defendants use it as a defense."
I think you can come up with a non-infringing ranking system if you put your minds to it.


Thank you for your opinion, as well as your confidence in our creative abilities. I will take your answer to mean you do not believe this falls under fair use. I will likely take the third option (which you didn't mention) and ask for permission.

[Edited by - linternet on March 20, 2008 10:27:50 AM]

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Would this be okay under fair use or should we come up with an alternate ranking scheme?
No. Your website is part of/promotion for your business and is therefore for commercial use.

That's not to say that the companies would necessarily sue. Some might like it... however that might be a costly gamble to take.

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Original post by Obscure
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Original post by linternet
Would this be okay under fair use or should we come up with an alternate ranking scheme?
No. Your website is part of/promotion for your business and is therefore for commercial use.

That's not to say that the companies would necessarily sue. Some might like it... however that might be a costly gamble to take.


Hmm, I didn't think fair use prohibited any and all commercial use.

Like in Back to the Future when Marty say's he's "Darth Vader from the Planet Vulcan" or Starcraft where units used quotes from various movies or maps had images of tie fighters/sarrlacc pits. Did they ask permission or would they argue fair use and/or parody?

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Original post by linternet
in Back to the Future when Marty say's he's "Darth Vader from the Planet Vulcan" or Starcraft where units used quotes from various movies

Having a character say he's Darth Vader is not the same thing as naming the character Darth Vader (and having him wear a black cloak and a helmet with a breathing system and wielding a light saber while subjugating planets). And it's not an infringement to use a quote. If it was, you'd already be liable for quoting a line from Back to the Future.
He who acts as his own attorney has a fool for a client. (To quote somebody.)

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Names aren't subject to copyright law. Copyright covers works of authorship. Trademark covers names and logos. This is a trademark infringement-- it's important for people to know the difference, because the rules are different for each. For instance, trademark fair use is considerably more stringent than copyright fair use, and therefore any use of another person's name or brand should be avoided or used with extreme caution. Even if it DOES constitute fair use, that doesn't stop a company from claiming and infringement, and they are in a better position to prosecute than you are to defend.

Unless you're using a substantial portion of the work(i.e., the images, character models, etc. from those games) use of the names alone won't constitute copyright infringement. This IS trademark infringement, and should therefore be avoided.

You have several scenarios of what might happen. Worst case-- they sue you and get an injunction, effectively shutting down your site and costing you potential boat-loads in legal fees. An infringement of ANY IP right has the possibility of getting you in deep poo and should be avoided. Best case, they ignore it or send you a C&D, but it's best not to even take that risk if you're afraid of it becoming an issue.

If you have any more questions, feel free to contact me.

<edited after a totally deserved dressing down>

[Edited by - madelelaw on March 23, 2008 2:23:03 PM]

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unless there's a substantial likelihood of confusion in the marketplace that your product is associated with Sierra/Universal's product, it won't be a huge issue.
Wrong.

Many corporations are extremely aggressive. Companies are required to vigorously enforce their rights or lose them. Major corporations will send out attack lawyers on even the smallest potential infractions. Small potential violations will usually get the C&D letters. When it comes to blatant violations like you described above, they will hit very hard.
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Unless you're using a substantial portion of the work(i.e., the images, character models, etc. from those games) use of the names alone won't constitute copyright infringement.
Wrong.

ANY infringement, no matter how small, is still infringement. ANY infringement invites the full force of law to come against you. The fair use exceptions are very narrow, and clearly do not apply in this situation.

The OP is writing about his own game, not a parody or commentary of those other works. It would steal major recognizable, distinct elements (the likenesses of characters) from Leisure Suit Larry, Space Quest, Monkey Island, and Kings Quest. It usurps substantial unique content from these games, which makes it a very blatant infringement.
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They're not going to sue you out the gate. The most you'll get is a cease and desist if they have an issue with it. At that point, you can change the ranking system.
Wrong.

Blatant infringement can be countered by a lawsuit directly.

Another oft-used device is a settlement letter demanding you either immediately accept guilt AND abide by their terms (which include take-down requirements) or face the courts. Observe the recording industry for examples of this.

A C&D is usually used when companies you are on the border of legal issues, or when they believe you may be ignorant of the issues and they are trying to be nice.

At the OP: Do not use that proposed ranking system. Create something of your own.

[edit: removed inappropriate personal attack.]


[Edited by - frob on March 23, 2008 12:18:45 PM]

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Just for the sake of discussion:

This list is a (likely non-comprehensive) list of pop culture references used in World Of Warcraft.

How do you think Blizzard would defend such use if confronted?

I suppose you could argue parody as the names are somewhat mangled, but the intent of these references seems to be an homage (which is what the proposed ranking system would be) to the originals and not making fun of them.

As for the ranking system, I'm going to ask for permission and if we don't get it we'll come up with our own rankings as it's not worth the trouble.

Thanks, everyone, for your input.




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the other thing to consider in copyright infringement that I haven't seen brought up is amount copied. This would be very small in this case. Also you could shorten it to just larry, roger, and graham and I don't think anyone could claim copyright since they are common names(now guybrush might be stretching it a bit).

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Original post by linternet

As for the ranking system, I'm going to ask for permission and if we don't get it we'll come up with our own rankings as it's not worth the trouble.


Make sure you receive written permission or companies may wait until you make some money before taking you out ;)

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Original post by linternet
Just for the sake of discussion:

This list is a (likely non-comprehensive) list of pop culture references used in World Of Warcraft.

How do you think Blizzard would defend such use if confronted?

I suppose you could argue parody as the names are somewhat mangled, but the intent of these references seems to be an homage (which is what the proposed ranking system would be) to the originals and not making fun of them.

As for the ranking system, I'm going to ask for permission and if we don't get it we'll come up with our own rankings as it's not worth the trouble.

Thanks, everyone, for your input.


The reason I changed my post, and the reason people are very persistent about making sure you get EXPRESS written permission, is the fact that having any grounds for an infringement claim (trademark or copyright or anything else) will put the infringer in a very dangerous position. Whether a company actually will pursue an infringement claim is irrelevant. It's the fact that they can that should be a deterrent.

As for the site you linked, they have permission. Official Blizzard Fan Sites . Also, some games provide licenses for specific art and TM'd logos for use on fan sites.

As for the pop-culture references-- you can use a trademark to reference the actual source trademarked product. Similarly you can use a trademark to compare or contrast one product with another. Even so, using the references without permission could potentially expose someone to the POSSIBILITY of an action, even if the action wouldn't win on the merits. So technically using the names and likenesses in that pop culture list could give rise to an infringement claim. Just because you think you're legally "in the right" to do something doesn't mean someone won't try to sue you over it.

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Just for the sake of discussion:

This list is a (likely non-comprehensive) list of pop culture references used in World Of Warcraft.

How do you think Blizzard would defend such use if confronted?

I suppose you could argue parody as the names are somewhat mangled, but the intent of these references seems to be an homage (which is what the proposed ranking system would be) to the originals and not making fun of them.

As for the ranking system, I'm going to ask for permission and if we don't get it we'll come up with our own rankings as it's not worth the trouble.

Thanks, everyone, for your input.


Blizzard would defend itself the same way Saturday Night Live or MAD magazine would. If you look at that list, you'll notice that Blizzard does not invoke the characters directly but instead parodies them with their own (typically comical) versions. Parody is covered under fair-use.

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Original post by Nairb
Blizzard would defend itself the same way Saturday Night Live or MAD magazine would. If you look at that list, you'll notice that Blizzard does not invoke the characters directly but instead parodies them with their own (typically comical) versions. Parody is covered under fair-use.

And the spend many millions of dollars every year on lawyer salaries.

You might be okay. You might not. Talk to a lawyer.

Are you prepared to handle Cease and Desist letters? Even if you are within the law, they might send you a C&D letter and demand that you remove their trademarks and any other IP from your site. The details of "Fair Use" is not codified in law, and is defined as whatever the court says it is. Are you prepared to defend your fair use in court? It isn't a criminal trial, so you'd have to hire your own lawyers. Even if you are within the law, if a company were to be very aggressive against your usage, you may end up spending a fortune on legal fees trying to defend yourself. Are you prepared to deal with that?

If not, then take the high road and create your own content.

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Blizzard would defend itself the same way Saturday Night Live or MAD magazine would. If you look at that list, you'll notice that Blizzard does not invoke the characters directly but instead parodies them with their own (typically comical) versions. Parody is covered under fair-use.

And the spend many millions of dollars every year on lawyer salaries.

You might be okay. You might not. Talk to a lawyer.

Are you prepared to handle Cease and Desist letters? Even if you are within the law, they might send you a C&D letter and demand that you remove their trademarks and any other IP from your site. The details of "Fair Use" is not codified in law, and is defined as whatever the court says it is. Are you prepared to defend your fair use in court? It isn't a criminal trial, so you'd have to hire your own lawyers. Even if you are within the law, if a company were to be very aggressive against your usage, you may end up spending a fortune on legal fees trying to defend yourself. Are you prepared to deal with that?

If not, then take the high road and create your own content.



Agreed. Bearing that in mind, and keeping with the spirit of discussion, I'd also like to clear up something.

Copyright does not protect names, so a copyright infringement analysis is inappropriate.

Names are protected by a) Trademark and b) the privacy rights like name & likeness and right of publicity.

Copyright fair use is sometimes kind of liberal, sometimes not. Trademark fair use is considerably more restrained.

It's best to not confuse people into believing that they *might* win under a copyright fair use analysis, especially when there are both trademark and name & likeness claims that can be thrown into the mix.

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