So how many trademark laws am I violating?

Charlie Horse · Jan 15, 2009

My brilliant new novel idea is to include some very well known evildoers pulled from other very well known stories. In essence, the quadrangle of the most sinister and evil villains ever created. Now keep in mind, this book is intended to be on the humorous side, these characters will never be named, in fact they might not even have any lines as the focus of the book will be on the people living in the very small town in which these masters of evil have somehow appeared. It will, however, be fairly obvious who these villains are by their mannerisms and physical descriptions, especially since between them the books they are pulled from have sold in the bajillions.

Am I in trouble, or even more importantly perhaps, am I insane?

gothicangel · Jan 15, 2009

The problem isn't trademarks - it copyright. An author retains copyright for 70 years after their death (UK). Does copyright still exist on these characters?

Charlie Horse · Jan 15, 2009

gothicangel said:
The problem isn't trademarks - it copyright. An author retains copyright for 70 years after their death (UK). Does copyright still exist on these characters?

Most definitely. All of these characters are from books and/or movies released in the recent past.

Philky · Jan 15, 2009

Who are they? If they are recent, you may have a hard time using them.

maestrowork · Jan 15, 2009

It's okay IF it's satire.

Charlie Horse · Jan 15, 2009

Philky said:
Who are they? If they are recent, you may have a hard time using them.

Like I said, I don't intend to ever reference them by name, just make their identities obvious by description. At this point I'd rather not state who they are.

maestrowork said:
It's okay IF it's satire.

Yes, it's definitely satire.

Philky · Jan 15, 2009

Gotcha.

If it's completely satirical, you're probably okay.

James D. Macdonald · Jan 15, 2009

If you are genuinely concerned, talk with a genuine lawyer.

Charlie Horse · Jan 15, 2009

James D. Macdonald said:
If you are genuinely concerned, talk with a genuine lawyer.

Now that's a genuine answer.

Prawn · Jan 15, 2009

My guess is Darth Vader, Magneto, Jigsaw, and Tinky Winky (who is by far the most sinister).

djf881 · Jan 15, 2009

Definitely check with someone.

The people who own the characters own the characters, and have a commercial monopoly on them.

There are fair use exceptions for noncommercial stuff like fanfics. If you draw a picture of Bart Simpson then you can put it on your website, but if you print it on a tee shirt and try to sell it, Fox might come after you.

There's a parody exception, but it's pretty limited. I think the leading cases are about something called "air pirates" involving Disney, something about a sample from a rap song that incorporated part of "Pretty Woman" (I think it was 2 Live Crew ).

Of course, even if you figure out the legal standards and position yourself on the right side of it, the potential for a lawsuit is a headache, and it's a headache that agents or publishers can avoid by not working with your book.

The easiest thing to do is to just not use somebody else's characters. Most of these villains are archetypes. The mad scientist, the powerful wizard/monk turned to evil, the megalomaniacal billionaire, whatever. You can use your own characters while still referencing the conventions of the genre. Think about how many heroes are sort of like Superman, but not Superman.

Charlie Horse · Jan 15, 2009

Prawn said:
My guess is Darth Vader, Magneto, Jigsaw, and Tinky Winky (who is by far the most sinister).

You've got one of the four. Sorry, although well qualified, Tinky Winky isn't on the list. Although I do suggest, Prawn, that you stop watching TV with your daughter and get back to writing.

Prawn · Jan 15, 2009

Charlie Horse said:
you've got one of the four.

Tinky Winky!

NicoleMD · Jan 15, 2009

Could you tweak the characters and give them different names? Like Darth Helmet from Space Balls? I find it strange that you're keeping all of these great characters in the background. It seems like you could have way more fun if you bring them to the spotlight, give them ridiculously exaggerated mannerisms, and make them your own, while still nodding at the original sources.

Anyway, I know absolutely next to nothing about law, so please keep that in mind. Good luck!

Nicole

Charlie Horse · Jan 15, 2009

NicoleMD said:
Could you tweak the characters and give them different names? Like Darth Helmet from Space Balls? I find it strange that you're keeping all of these great characters in the background. It seems like you could have way more fun if you bring them to the spotlight, give them ridiculously exaggerated mannerisms, and make them your own, while still nodding at the original sources.

Anyway, I know absolutely next to nothing about law, so please keep that in mind. Good luck!

Nicole

My intention right now is to never give them names. As this idea develops, they'll become the catalyst for a series of developing relationships and circumstances between the people in this quite small town. Don't ask me how, or why. I'll figure that out as I go. It's also highly possible, as I'm still fleshing this idea out, that the whole idea will change drastically before I'm through.

djf881 · Jan 15, 2009

Charlie Horse said:
My intention right now is to never give them names. As this idea develops, they'll become the catalyst for a series of developing relationships and circumstances between the people in this quite small town. Don't ask me how, or why. I'll figure that out as I go. It's also highly possible, as I'm still fleshing this idea out, that the whole idea will change drastically before I'm through.

This sounds like you're appropriating these characters to lend commercial value to your own work, and it's unlikely to qualify for parody exceptions or other loopholes.

I think you should seriously think about creating your own characters to embody whatever it is you want these villains to represent.

Charlie Horse · Jan 15, 2009

djf881 said:
This sounds like you're appropriating these characters to lend commercial value to your own work, and it's unlikely to qualify for parody exceptions or other loopholes.

I think you should seriously think about creating your own characters to embody whatever it is you want these villains to represent.

Yeah, but that's not nearly as funny. As far as commercial value, I hope that comes from my writing and not gimmicks.

Thanks, though, for your input.

Diamond Lil · Jan 15, 2009

Echoing the other posters, but yeah, I'd be careful with this. The entertainment industry is possessive of its materials. So much stuff gets pulled off YouTube all the time.

Also reminds me of a scene in an early Simpsons episode where Bart gets famous on the Krusty the Klown show. When Krusty realizes Bart's about to make it big, he grabs him and yells, "I own him and all the ancillary rights!"

Do you belong to a writers' organization? Some of them have lawyers who do pro bono consultation for writers who might have legal issues.

Jerry B. Flory · Jan 15, 2009

I have the same problem with a work that includes Johnny Depp.
Depp himself is not the problem but when I pull in the characters he has played as the imaginary friends of the MC then I butt heads with all kinds of people over copyright.
I will never discard this work. I consider it my magnum opus. What I will do is work to publish other stuff, establish myself as a professional, viable writer, then approach the copyright arena.
I've began the long slow grind on this already by sending snail mail letters to Depp, his representation and others in his circle.
I do not expect it to happen overnight and will not even consider the throngs screaming "it can't be done."
Every effort will be made.
If you like your story. If you feel it talking to you, making your ear itch, then, by all means, write it to the best of your ability and, also, write other stories.
In the end, it is your credibility as a writer and patient perseverance that wins out in these "dream" books.

Charlie Horse · Jan 15, 2009

Jerry B. Flory said:
I have the same problem with a work that includes Johnny Depp.
Depp himself is not the problem but when I pull in the characters he has played as the imaginary friends of the MC then I butt heads with all kinds of people over copyright.
I will never discard this work. I consider it my magnum opus. What I will do is work to publish other stuff, establish myself as a professional, viable writer, then approach the copyright arena.
I've began the long slow grind on this already by sending snail mail letters to Depp, his representation and others in his circle.
I do not expect it to happen overnight and will not even consider the throngs screaming "it can't be done."
Every effort will be made.
If you like your story. If you feel it talking to you, making your ear itch, then, by all means, write it to the best of your ability and, also, write other stories.
In the end, it is your credibility as a writer and patient perseverance that wins out in these "dream" books.

Best of luck on that. Hey, W.P. Kinsella wrote a book with J.D. Salinger as one of his main characters (which was changed when they turned the book into the movie "Field of Dreams). If someone like Salinger, who guards his privacy like the Hope Diamond, allowed that, then your book with Johnny Depp certainly has a shot. Of course, it helps if the book is great as was Kinsella's "Shoeless Joe".

maestrowork · Jan 15, 2009

a) Dead people are fair game.

b) If it's satire, you can probably get away with quite a bit. Doesn't mean you won't get sued. Tom Cruise sued the South Park guys, for example. But it doesn't mean they will win either.

c) If it's a living person and it's not satire, then you will need permission and chances are you won't get it unless you're portraying them in great light. I believe KTC, for example, got permission to include Gordon Lightfoot as a character.

sassandgroove · Jan 15, 2009

Charlie Horse said:
My intention right now is to never give them names. As this idea develops, they'll become the catalyst for a series of developing relationships and circumstances between the people in this quite small town. Don't ask me how, or why. I'll figure that out as I go. It's also highly possible, as I'm still fleshing this idea out, that the whole idea will change drastically before I'm through.

If you aren't going to give them names 1) how are we going to recognize them and 2) how would you possibly be violating anything if it is just hinting?

Sassy- bad about run-on sentences.

djf881 · Jan 15, 2009

maestrowork said:
a) Dead people are fair game.

b) If it's satire, you can probably get away with quite a bit. Doesn't mean you won't get sued. Tom Cruise sued the South Park guys, for example. But it doesn't mean they will win either.

c) If it's a living person and it's not satire, then you will need permission and chances are you won't get it unless you're portraying them in great light. I believe KTC, for example, got permission to include Gordon Lightfoot as a character.

It's actually fine to use a living person as a character, as long as it's a work of fiction. Bret Easton Ellis dropped lots of real-life names in "Glamorama" of people who probably would have preferred not to be associated with the book. Tom Cruise didn't actually sue the South Park guys. What happened was that Tom Cruise had a relationship with Paramount, which owns South Park, and they blamed him for using his influence over there to prevent a rerun of the Scientology episode.

You may be thinking of libel, since the dead can't be defamed, but an element of defamation is that a reasonable person would believe the false statement to be true.

The parody exception is pretty limited. Think Mad Magazine or Weird Al Yankovic. If you're using Hannibal Lecter to make fun of Hannibal Lecter, that's one thing. But making him a major character in your novel is going to be pretty dicey, unless your novel is about making fun of Hannibal Lecter.

Even if the book can arguably fall into the exemption, it's coming close to the line, and an agent or publisher will have a big pile of manuscripts that don't have any content that might cause a lawsuit.

IceCreamEmpress · Jan 15, 2009

Charlie Horse said:
Best of luck on that. Hey, W.P. Kinsella wrote a book with J.D. Salinger as one of his main characters (which was changed when they turned the book into the movie "Field of Dreams). If someone like Salinger, who guards his privacy like the Hope Diamond, allowed that, then your book with Johnny Depp certainly has a shot.

Johnny Depp is fine, because he's a public figure. Jack Sparrow, not so much, because he's someone else's intellectual property.

Also, Kinsella's depiction of Salinger was closely vetted for libel by Houghton Mifflin's lawyers.

Cathy C · Jan 15, 2009

maestrowork said:
a) Dead people are fair game.

Not so much. There have been plenty of suits by heirs of deceased celebrities against people who use the likeness or purposed likeness to sell something.

The family of Bobby Darrin (famous for "Mack the Knife") sued McDonalds for its short-lived series of commercials "Make it Mac Tonight". Likewise, the family of Jim Jones (of Kool-aid fame) sued for several parodies.

Nothing's certain in life except death, taxes and the outrage of people when they feel they've been libeled.

So how many trademark laws am I violating?

Speaking in metaphors

Toughen up.

Speaking in metaphors

Redneck Jedi

Fear the Death Ray

Speaking in metaphors

Redneck Jedi

Your Genial Uncle

Speaking in metaphors

Writing is finite,revising infinite

AW Addict

Speaking in metaphors

Writing is finite,revising infinite

Onomatopotamus

Speaking in metaphors

AW Addict

Speaking in metaphors

under the Milky Way

Speaking in metaphors

Fear the Death Ray

Sassy haircut

AW Addict

Hapless Virago

Ooo! Shiny new cover!