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Write on,

Tonya Evans-Walls

Legal Write Publications & award-winning site LiteraryLawGuide.com

I received an interesting question this month, the answer of which will be likely being helpful to other writers. So I have paraphrased the question in the title line. The original question asked if those other characters are protected by copyright or in some other way protected that would prevent the writer from referring to those characters. Below is my response. Visit www.LiteraryLawGuide.com for various resources for writers that cover a range of topics that may answer questions you have about copyright, trademark or other literary law issues. Also, consider my e-book "Writing About Real People and Places." 

ANSWER: 

There are actually a couple of intellectual property laws that you should be aware of for this issue; copyright and trademark. 

Copyright protects original and creative artistic and literary works. Copyright allows the owner to 1) copy 2) distribute copies 3) make derivative works (turn a book into a screenplay, for example) 4) perform the work publicly and 5) display the work publicly. So copyright is actually a bundle of rights.  One cannot, however, copy the name of a commonplace, peripheral character in a book or title of a book. However, courts have consistently extended copyright protection to fictional characters that have sufficient original and creative characteristics as to be a distinctive character (meaning not merely a drawing, but a character with a name, features, and speech or other means of communication). Successful court battles to protect copyrighted characters include characters like Batman, Mickey Mouse, Superman and Betty Boop. This is not to be confused with a drawing of a character, that doesn't have any other features other than a graphic representation. In that case, the drawing could certainly be copyrighted as visual art with Copyright Form-VA.

 A second law that may apply and protect a character is trademark law.  Trademark law grants the owner the exclusive right to use a word, phrase, logo, design, sound etc. in connection with the sale of goods or services. For example, NBC uses its distinctive chime as a sound mark to promote its services as does MGM for the lion’s roar. McDonalds uses the golden arches to promote and sell their brand of fast food as does Burger King’s slogan, “Have it your way.” But it’s not just protecting a tag line, per se, but the way a particular company uses it to sell its goods or services. One main purpose of trademark law is to avoid consumer confusion about who is the actual seller of a product or service. For this reason, a fast food company named McDowells could not also use a “golden M” that is in any way similar to McDonald’s use.  I say all of that to say, that copyright does not protect the characters, but trademark may (Harry Potter is trademarked, for example). BUT there is certainly an exception for literary and artistic purposes in writing or else these rules would stifle creativity as long as it is clear that the owner of a particular trademark is not the source of the book and has not endorsed it in anyway. So you could certainly refer to real people as well as characters and use your own literary interpretation to develop different scenarios for that character. Of course, the safest way to proceed is to use the same names and give them different character traits and a different story line.I discuss this in greater detail in Literary Law Guide for Authors: Copyright, Trademark and Contracts in Plain Language, available at the website, Amazon.com or your local book seller.Click here to listen to previous casts or subscribe.

Write on!

Tonya

Hello All,

I hope everyone is well and in good spirits. Today’s podcast focuses on the all too pervasive myth known by some in the writing community as the Poor Man’s Copyright. This myth suggests that if you mail your work to yourself and keep it unopened that this can be the “smoking gun” in case anyone infringes your work. But there is one really good reason why this just is not the case, and I explore this reason, as well as the benefits of copyright registration and how copyright comes into existence in the first place.

I also give an update on the Hershey Corp. v. Simon & Schuster trademark infringement case in which Hershey sued to stop the publisher from using its Hershey trademarks on the cover of a soon to be released book about the life and times of Milton Hershey.

Click here to subcribe or listen to the podcast and post your comments and questions about this or any podcasts. I will answer the most common and interesting questions in this blog. And be sure to visit the premier legal reference site for writers: www.LiteraryLawGuide.com.

Listen and learn, anytime anywhere with Lit Law for Writers on the Go! Podcast.

Write on,

Tonya

Hello All,

 Well I published the first official podcast for Lit Law for Writers on the Go! I recorded a beginning and ending and the main track is a prerecorded teleseminar. In future casts the audio wil be seamless but for this podcast you’ll hear a little break between the new audio and the prerecorded audio. But the 9 Things Every Writer Must Know teleseminar is a valuable one and the information is an essential foundation for future podcasts.

Here’s a rundown of the questions that this podcast asks and answers:

1. What is intellectual property?
2. What is a copyright and what can and cannot be copyrighted?
3. When does copyright exist and what steps must you take to register your copyright?
4. Is registering your work with a writer’s guild the same as registering with the Copyright Office?
5. What is the “Poor Man’s copyright” and does it protect your work?
6. When in the writing process should you register your work?
7. How much of other people’s work may you quote without permission?
8. How you mention real people and places in your work without violating another’s rights?
9. What contracts must you have in place if you want to publish your own work?

1/5 Update: I have received good questions and will post some of the most interesting and helpful ones and my responses to them in upcoming posts. Feel free to use the “comment feature” below to leave a comment to a podcast or post.

Enjoy and may you continue to write and shine!

Tonya

Hello and welcome to my new blog! I am excited to add this blog because it allows me to field any questions you might have after listening to the podcast or if you’d like to suggest topics for future podcasts.

Click here to listen or get the URL needed to subscribe to my free bimonthly podcast. Then submit the URL to your favorite podcatcher (ex: Juice (formerly known as iPodder), itunes.com, or download into your MP3 player). The welcome message is available now and the inaugural podcast will be released on January 2nd!

Have a happy and safe New Year celebrbation and I look forward to connecting with you in 2006!

Best,

Tonya