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Using Fictional Characters Without Permission Is A Real Problem

There always is a lot of confusion among the general public about the nature of copyright infringement and whether it is legal to create your own works, whether it be commercial products or fan fiction, based on other people’s works. One person recently asked me what the penalties were for plagiarising fictional characters. Although I’ve written about the topic of intellectual property rights before, I thought I would share my answer with my other readers.

Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.

Literary, artistic, and musical works — including books, comic books, video games, films, television shows, cartoons, and songs – are eligible for copyright protection. So is any written work (such as a character description) that is sufficiently original and substantial.

If you were to write your own story or make a video game about Superman character, for example, it would be considered to be a derivative work of DC Comic’s Superman comic books. If you publicly distributed such a derivative work without DC Comic’s permission, it would be copyright infringement.

In the United States, the penalties for copyright infringement are:

  • Infringer pays the actual dollar amount of damages and profits.
  • Infringer pays statutory damages ranging from $200 (accidental infringement) to $150,000 (intentional infringement) for each work infringed.
  • Infringer pays for all attorneys fees and court costs.
  • The Court can issue an injunction to stop the infringing acts.

Names alone are not substantial enough to be considered literary works and therefore are not eligible for copyright protection. You are free to name your baby “Superman” if you wish.  Similarly, Joe Croce is allowed to have the lyrics “you don’t tug on superman’s cape” in his song You Don’t Mess Around With Jim, as it is only a reference to the Superman character.

However, the words comprising names can be registered as trademarks used to represent a company or product. For example, one of the many trademarks DC Comic has registered for the word “Superman” is for confectionary products (USPTO trademark serial number 7578832).

Trademark infringement involves using someone else’s trademark without permission on competing or related goods and services in such a way that it causes a likelihood of confusion in the average consumer. If you were to use the word “Superman” without permission on the packaging of candy that you were selling, you would be infringing on DC Comic’s trademark 7578832.

A trademark violator who is sued by the owner of a lawfully registered trademark in the United States may be ordered to pay monetary damages based on lost profits calculated from the sales the trademark violator made while using the trademark illegally. If the court finds that the trademark violation was intentional, such as a case in which the violator is selling goods that he is trying to pass off as coming from a known popular brand, the court may impose penalties of three times the amount of actual lost profits.

Ideas are not protected by intellectual property laws. For example, the idea of a cape-wearing, flying, invincible superhero who comes from an alien planet is not protected, and so you are perfectly free to create your own cape-wearing, flying, invincible superhero who comes from an alien planet. However, if you add on enough details that are similar to the Superman character (similar outfit, his planet is named Krypton, works as a reporter for The Daily Planet newspaper, etc) that the average person would confuse your character with DC Comic’s Superman character, you would be committing copyright infringement.

Plagiarism is taking someone else’s work or ideas and passing them off as one’s own. Plagiarism is not a crime; however, when committing plagiarism, many people also commit copyright infringement, which is a crime.

Also, crediting someone’s work that you use without their permission does protect you from committing plagiarism, but it does not protect you from committing copyright infringement. If you were to post your own story about or drawing of Superman on the internet with the disclaimer “Superman is a character owned by DC Comics. No copyright infringement is intended”, DC Comics could still successfully sue you for copyright infringement.

Now, you’ve probably noted that I did use an image from a Superman comic book to illustrate this article.  However, there are certain limited Fair Use exceptions to using copyrighted works without permission, such as criticism, news, an parody — so long as you only use enough of the work as is necessary for your purpose and your use does not deprive the copyright holder of any potential revenue or market for that work (you can also use characters for which the copyright period has lapsed or are otherwise in the public domain).  I think that my use is Fair Use for my purpose of educating my readers about intellectual property laws.  Besides, I don’t think DC Comics would object on me telling people not to “tug on Superman’s cape” with out their permission.

 

No, You Can’t Just Take Someone Else’s Work To Use In Your Game!

The internet has made all kinds of content — news articles, music, photographs, and video — easily available for anyone in the world to access.  However, that doesn’t mean that it is free to take and use for your own purposes.  If you were to build, say, a cabinet in your garage, there are property laws that make it illegal for someone to take that cabinet from you without your permission.  Similarly, if you were to make a creative work, such as a story, drawing, song, or video game, there are intellectual property laws that penalize other people from copying, exhibiting, or selling your work, even when it is incorporated into their own creative works, without your consent.

Game developers often have to rely on outside sources to provide all the assets they need to make their game, and so they need to be aware of the laws that restrict when and how they can use someone else’s resources.  Intellectual property laws vary from country to country, so in this article I will give you the United States perspective on four areas of intellectual property law: copyright, trademark, patent, and trade secret.

Copyright

Copyright literally means the right to make copies of a work.  However, the concept has also been expanded to mean the right to control the exhibition or display of that work as well as the right to sell it.  Copyright also protects the right to make derivative works: a work based on or derived from one or more already existing works. Examples of derivative works include foreign language translations of a book, the use of a painting in an advertisement, a revision of a website, or a video game based on a movie.

Copyright protection covers many types of original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.  Yes, architecture.  When I produced Vampire: The Masquerade — Bloodlines for Activision, we were not allowed to put the Hollywood sign in a level set in Hollywood because the sign was architecture protected by copyright.

The work must also be fixed in a tangible medium of expression that it is perceptible either directly or with the aid of a machine or device: for example, a piece of paper, a DVD, or a computer file.  If you came up with a story that you only spoke aloud without having written it down, that story would not be protected by copyright.  However, once you wrote it down or you recorded your recitation of the story, it would be protected by copyright.

Works are protected by copyright as soon as they are created.  The author does not need to place a copyright statement on it or register it with the United States Copyright Office to own its copyright.  However, doing so does let others know who the copyright owner is and when the work was created; it also is essential to register your work to effectively engage in an copyright infringement lawsuit. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation.

The duration of copyright protection depends on several factors.  For works created by an individual, protection lasts for the life of the author, plus 70 years.  For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

Copyright does not protect facts, systems, or methods of operation, although it may protect the way these things are expressed.  For example, you cannot reproduce the text from Encyclopedia Britannica without permission, but you can use the information contained within it.  Copyright also does not protect ideas.  You might have what is a great idea for a game, but that idea is not protected by copyright.  It must be developed into some type of work.

That work must also meet what is called the “threshold of originality” to be copyrighted. US court cases have specified that the work must possess “at least some minimal degree of creativity”.  Merely putting in a lot of effort in making the work is not sufficient to establish a copyright claim. For example, a compilation of multiplication tables or list of telephone numbers cannot receive a copyright.

There are exceptions to the use of copyrighted works without permission of their owners, called Fair Use.  The fair use of a copyrighted work without infringing the owners rights is based on a number of factors, including:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, or whether such use is intended to criticize or parody the original work.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.  Note that titles of works or the names of characters are not protected by copyright as they do not meet the substantiality criterion, although the work itself or a character within it is protected. You can make a game about a middle-aged New York plumber named Harry Potter, but if you make a game about a British boy wizard named Terry Dotter who has a lightning-shaped scar on his head, you are likely to get sued for copyright infringement.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

For example, if you were to quote one sentence from a Yahoo Answers blog post for a video game used for non-profit educational purposes, you would probably be at a low risk of copyright infringement.  However, if you were to make an sell an indie game based upon an upcoming major motion picture, you would probably be at a very high risk of copyright infringement.

Note that giving credit to an author or artist whose work you used without permission does not grant you immunity from copyright any more than a robber announcing which bank he stole money from grants him immunity from bank robbery charges.

However, you can also use creative works that are in the public domain.  These are works whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable. Actually, copyright laws in many jurisdictions actually makes it very difficult for an author to give up copyright to his or her works, although the organization Creative Commons  does provide tools for authors to waive all interests to their work worldwide and to place a Public Domain mark on their work.

If you do not see a public domain mark or notice on any text, audio, image or video you would like to use in your video game, assume that it is under copyright protection and that its owner might pursue legal action for its unauthorized use.

Trademark

Many people confuse copyright and trademark.  These are two different forms of intellectual property protection.  Whereas copyright protects a creative or literary work, a trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.  Think brand names, slogans, and logos.

For game developers, this means that you cannot, for example, use the logos of real car manufacturers in a racing game without permission. And while a book title and character name cannot be copyrighted, it might have trademark protection for use in commercial products.  Time Warner Entertainment owns the trademark “Harry Potter” for a wide range of product categories, including books, clothing, and video games.

Unlike patents and copyrights, trademarks do not expire after a set term of years.  Instead, a trademark can last forever, so long as the owner continues to use the mark in commerce to indicate the source of goods and services.

Trademarks do not have to be registered but federal registration has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.

If you are want to find out whether a name or phrase you wish to use in a game is registered with the United States Patent and Trademark Office, you can search their trademark database.

Patent

A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention.  Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.  The United States Patent and Trademark Office has also granted patents that may be referred to as software patents since at least the early 1970s.

These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without permission.

Innovative game mechanics may be patented.  For example, Wizards of the Coast owns a patent to the rules of their collectible card game Magic: The Gathering, and I was recently used as an expert witness in a lawsuit that Wizards of the Coast filed against the game developer Cryptozoic because their video game Hex: Shard of Fate allegedly copied Magic “the overall plot, elements, theme, mood, setting, pace, creatures and sequence” of Magic. While I am not free to reveal the details of the case, I can tell you that Wizards of the Coast and Cryptozoic eventually decide to settle out of court after 16 months of litigation.

The duration of patent protection depends on the type of patent granted: 14 years for design patents and 20 years for utility and plant patents.

Trade Secret

A trade secret is confidential business information which provides a company a competitive edge such as sales methods, distribution methods, consumer profiles, advertising strategies, client lists, and manufacturing processes.  While a game idea might not be eligible for copyright protection, a company’s confidential plans to make a game based on an idea might be a trade secret.

Companies often protect their trade secrets by having employees and outside parties sign Non-Disclosure Agreements (NDAs) before revealing any confidential information with them. An NDA is a legal contract between the parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties.NDAs can be “mutual”, meaning both parties are restricted in their use of the materials provided, or they can restrict the use of material by a single party.An NDA can protect any type of information that is not generally known. However, nondisclosure agreements may also contain clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret.

NDAs are commonly signed when two companies, individuals, or other entities (such as partnerships, societies, etc.) are considering doing business and need to understand the processes used in each other’s business for the purpose of evaluating the potential business relationship. In my career I’ve had to sign hundreds of Non-Disclosure Agreements in order to conduct business.

Licensing Agreements

If you are interested in basing your game on someone else’s copyrighted movie, novel, or other creative work, or you wish to use their photographs, music, characters, or logos in your game, then you need to sign a Licensing Agreement with them.  A licensing agreement is a legal contract between two parties, known as the licensor and the licensee. In a typical licensing agreement, the licensor grants the licensee the right to produce and sell goods derived from a copyrighted work, apply a brand name or trademark, or use patented technology owned by the licensor.

Savvy licensors will not enter into a licensing agreement without doing due diligence to ensure that the potential licensee will not dilute the value of their license by producing inferior products or poor revenues.  A licensor will want evidence of a game developer’s talent and past successes as well as a solid business plan for use of their license before agreeing to license their work.

If you are a novice developer, it is extremely unlikely you will enter into a licensing agreement with any prominent licensor such as a film studio, toy company, or well-known author.  First, you need to develop your own talent and reputation by making original works of your own.