Quote:Original post by Splinter of Chaos
Quote:Original post by d000hg
Quote:Original post by Splinter of Chaos
Quote:Original post by d000hg
I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.
So, no one would sue over the tademark? I can't exactly call the main character of my book Mickey Mouse, can I?
Mickey Mouse isn't a normal name. But there must be thousands of real people called Harry Potter.
Believe it or not, there are kids named Mickey, and the last name Mouse. It's happened. Does this mean no one can sue over it?
And back to the copyright issue:
Would an actual lawyer here be able to answer: is it really so written on stone? It seems to me there have been court cases that have been won on both sides of the same issue. And of coarse, they probably had all sorts of different circumstances, but do we oversimplify the matter by quoting the law and calling it a day?
(Not offering bad advice that can get someone in jail, just asking a question.)
First, this is all purely educational-- nothing herein constitutes legal advice.
If we're discussing name use, that's not a copyright issue, it's a trademark issue. Harry Potter and Mickey Mouse (the names themselves) are not copyrightable. Names can't be copyrighted. They are trademarked. Trademarks designate the source of a product's origin. The Lanham Act and unfair competition laws usually govern the US Federal law re: trademark infringement-- the test is whether there is a likelihood of confusion between two marks. There are also name and likeness issues, privacy right issues, etc., but those intellectual property-like issues touch on the rights of actual individuals.
In copyright, the test employed by courts for direct infringement is twofold: First, did the alleged infringer have access to the copyrighted matter, and second, was there a substantial amount taken from the copyrighted matter to constitute an infringement.
It can go both ways on both issues (trademark or copyright, depending on the infringing use). Sometimes it's easy to determine that an infringement occurred. Sometimes there are other matters to bear in mind, such as the technology used in piracy. There is nothing simple and clear cut in the law, particularly an area of law that is forced to adapt to changes in technology.
It isn't always clear whether something is subject to copyright protection. In fact an affirmative defense to copyright infringement is that the copyright isn't valid. Invalidity is a bit difficult to prove, as holding a registered copyright creates a presumption of validity. First, the law is fairly well settled as to what is and what is not subject to copyright protection. It helps that the Copyright Act isn't exactly ambiguous as to protected subject matter. Second, the court relies on the Copyright Office to determine whether a copyright is valid. This is slightly less of an issue for trademark, as state laws also protect purely intrastate trademark uses.
The POINT here is keeping people away from having to suffer the expense of testing all of these possibilities. Recommending anything that would put the OP or other people under the delusion that it's ok to do something simply because the law isn't "clear cut" is very, very bad advice. Court is expensive. Legal fees are nothing to sneeze about. You can't get E&O Insurance coverage unless you can provide adequate assurance to the insurance provider that your product is a low risk to IP infringement litigation exposure. These are all things developers and creators of game product have to keep in mind.
Academic speculation without the adequate academic background, especially in the legal area, is both tricky and in most cases risky. Please avoid saying or suggesting anything that may mislead the people who come here for help.
[Edited by - madelelaw on August 3, 2008 8:05:35 PM]
