Copyright Clarification

[Echo_]

I had this question burning in my head the other night and this is all hypothetical (sp?), Okay.

So say I want to write a story or even make a movie. Can I use a name from a might and magic game (any of the nine) and still not be disobeying or violating copyright rules?
I'm wondering for all shopkeepers, NPCs, and the names that are randomly generated in the beginning of the game.

Also, the same question for names of heroes in the HOMM series and different games, for say a game such as neverwinter nights of B-Gate?

[Corribus]

Might and Magic is a trademarked name. What that means, I believe is this:

1. You can use "Might and Magic", referring to the game, in text. For instance, if you were writing a book, you could have a character playing Might and Magic in a scene. Or the character could say, "Hey Bob, I'm playing Might and Magic." Just as it's ok to have a character drink a bottle of Coke.

2. You cannot advertise your novel as being set in the Might and Magic universe. The distinction is that one of them uses the trademarked name in order to generate money, and the other doesn't.

That's my personal take, but I'm not a lawyer. If you are really interested you can read more about trademarks here:

http://en.wikipedia.org/wiki/Trademark

[Echo_]

Okay, thanks. That's exactly what I needed to know.

[Psychobabble]

That's not the right distinction to draw. Not for profit activities can certainly violate a trademark. Trademarks are enforced at common law through an action called ‘passing off’. Passing off is pretty much what it sounds like – are you passing your product off as being endorsed, related, created, affiliated etc. with the trademark holder. Even if you're not using the exact words, phrases or attributes which are trademarked you can infringe the trademark. The essence of the action is whether or not you will mislead the consuming public. There are also various statutory regimes for registering and enforcing trademarks but they don't usually depart significantly from the common law.

As for copyright, the words ‘Might and Magic’ wouldn’t themselves be copyrighted, but the might and magic universe is as it is a novel creative product. If you wanted to try and set something in or related to that universe, you would have to skirt the narrow path of fair use. Parodies, academic comment and reviews are most likely to be fair use, fan fiction is certainly not (just about all fan fiction is illegal, it’s just that the copyright holders don’t usually enforce it – though the owners of Star Trek did in the early years of the Internet).

[Corribus]

That certainly sounds more reliable than what I said.

[Kareeah Indaga]

fan fiction is certainly not (just about all fan fiction is illegal, it’s just that the copyright holders don’t usually enforce it – though the owners of Star Trek did in the early years of the Internet).

That’s why most if not all of the stuff on fanfiction.net has a disclaimer, correct?

[Bandobras Took]

I suspect that to clamp down on most fanfiction on the internet would be to give it a dignity it most definitely does not deserve.

[Kareeah Indaga]

I suspect that to clamp down on most fanfiction on the internet would be to give it a dignity it most definitely does not deserve.

LOL, yeah. And it would probably anger the fans unnecessarily as well as eliminate a decent source of advertising, wouldn’t it?

[Psychobabble]

That’s why most if not all of the stuff on fanfiction.net has a disclaimer, correct?

I don't know what this disclaimer says (I had a look at a few random stories and didn't see anything) but disclaimers are possibly effective against trademark infringement (but often not), but are certainly not effective against a copyright infringement suit. No amount of discliaming can get you out of that.

LOL, yeah. And it would probably anger the fans unnecessarily as well as eliminate a decent source of advertising, wouldn’t it?

And this is the real reason why they aren't prosecuted, it's like shooting yourself in the foot and it's not causing lost sales. Like I said, though, there was a massive clampdown on Star Trek stuff about 10 years ago which hit not only fanfic but just the everyday infringement of images, words, marks and ideas that all fan-sites (including this one!) do every day. Basically every Star Trek fan site except the official one was shut down for a period... untill the Trekkies rioted .

[Angelspit]

I suspect that to clamp down on most fanfiction on the internet would be to give it a dignity it most definitely does not deserve.

My girlfriend tells me there is some excellent fan fiction on the Net. Some of the authors are very creative and go beyond what the conventional mediums (TV, especially) are allowed to do.

[Bandobras Took]

I suspect that to clamp down on most fanfiction on the internet would be to give it a dignity it most definitely does not deserve.

My girlfriend tells me there is some excellent fan fiction on the Net. Some of the authors are very creative and go beyond what the conventional mediums (TV, especially) are allowed to do.

That's why I said "most."

There are undoubtedly brilliant examples, it's all the mud you have to root through to find the pearls that depresses me.