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montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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I would like to know how to research a specific copyrighted

Customer Question

I would like to know how to research a specific copyrighted material to understand what is copyrighted and what isn't.

I am a writer and I would like to know precisely whatis copyrighted in the H.P. Lovecraft universe from "Call of Cthulhu" by Chaosium and "Arkham Horror" by Fantasy Flight Games.
They seem to hold copyrights on elements invented by H.P. Lovecraft in 1920s and others from additions they've made on the universe, but they don't answer my inquiries and I am at a lost to figure out how to investigate such matter.

What is the process to know copyright like these and clear them if need be?
Does literary copyrights broker exist ?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Fran-mod replied 1 year ago.
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Expert:  montysimmons replied 1 year ago.

 

First, note that copyright attaches to a work the moment it is created and fix in some tangible medium (written down, put on CD, etc.). Registration is not required, nor does it create, a copyright.

 

Registration simply registers a copyright which is a requirement before one can file suit.

 

But copyrights rights can and do expire and enter the PUBLIC DOMAIN.

 

For example, for works that have NEVER been published (e.g. someone wrote a book and put it away and the book was never "published" or made public) and NEVER registered, the copyright term was 70 years for works from authors who died before 1943.

 

Another example: ALL work registered and first published in the US before 1923 are not in the public domain and free to use by all.

 

 

Thus, the first logical step with regard to copyrights would seem to try to determine if the work is in the public domain regardless of who might own a copyright.

 

Second, then I would search the copyright database.

 

 

PUBLIC DOMAIN

 

Today, one is not required to register copyrights or give notice that a copyright exists. Although giving notice is a good idea for other reasons.

 

In the past, registering and notice requirements have changed creating kind of a mess in determining if a copyright still exist.

 

 

PUBLIC DOMAIN

(1) Never Published, Never Registered Works

(2) Works Registered or First Published in the U.S.

(3) Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad

(4) Sound Recordings

(5) Sound Recordings Published Outside the United States

(6) Special Cases

(7) Architectural Works

Here is a very helpful chart

http://copyright.cornell.edu/resources/publicdomain.cfm

 

 

HOW TO SEARCH COPYRIGHT RECORDS

 

There are several ways to investigate whether a work is under copyright protection and, if so, the facts of the copyright. These are the main ones:


1 Examine a copy of the work for such elements as a copyright notice, place
and date of publication, author and publisher. If the work is a sound recording,
examine the disc, tape, cartridge, or cassette in which the recorded sound is
fixed, or the album cover, sleeve, or container in which the recording is sold.

2 Search the Copyright Office catalogs and other records.

3 Have the Copyright Office conduct a search for you.

 

 

http://www.copyright.gov/records/

 

Also read the information here

 

http://www.copyright.gov/circs/circ22.pdf

 

 

Good Luck with this

 

Customer: replied 1 year ago.

Hi,


thank you for an indept answer. There is precision that remains as too know if its possible or not that companies could have copyrighted character name and places names, cities and such, of a universe invented by Lovecraft in the 20s, by adding to it and changing details or some other mean.


 


This subject is not just a book in particular, but a whole universe (the Cthulhu Mythos universe) that Lovecraft himself encouraged his friend writer during his life to write and share in it and mention part of it in their work and cross references.


 


Chaosium and Fantasy Flights games have took this and expanded on it, creating characters, landmarks in cities that where created by Lovecraft, and archetipial stories mechanics in that universe, and they used that for boardgames, videos games, novels, RPG and so on. So How do I inquire to trace all these elements that are not tied to any spefific one novel or movie but many different sources ?

Expert:  montysimmons replied 1 year ago.

YOU ASK

 

So How do I inquire to trace all these elements that are not tied to any specific one novel or movie but many different sources ?

 

 

ANSWER

 

That will be a difficult task. The only way I know one can search for copyrights in such component works is to search them one at a time. Painful and slow.

 

 

Now you can use the "Public Domain" evaluation to reduce the list of items you need to search.

 

And you can also do a copyright eligibility evaluation to reduce the list of items you need to search.

 

For example, names, titles, and short phrases are not typically eligible for copyright protection.

 

 

Other than that, such knowledge can only be obtained by a painful and slow search for each work.

Customer: replied 1 year ago.

What are : copyright eligibility evaluation and "Public Domain" evaluation ?


 


And how is a copyright eligibility evaluation different from just searching for copyrights?


 


Thanks

Expert:  replied 1 year ago.

YOU ASK
What are : copyright eligibility evaluation and "Public Domain" evaluation ?

ANSWER

Suppose I have a book that was published and registered in the US in 1920 and I wanted to base a movie on the book. But I do not know who now owns the copyright. Where do I search?

The short answer . . . one does not do a search because any work that was published first in the US before 1923 is now in the public domain (the copyright has expired).

Thus, if I can determine when and where a work was first published (for if it was published) I can determine if any associated copyright term has expired.

Here is a very helpful chart
http://copyright.cornell.edu/resources/publicdomain.cfm



YOU ASK
And how is a copyright eligibility evaluation different from just searching for copyrights?


ANSWER : Copyright Eligibility Evaluation

Well, such would be a very simple evaluation, typically.

Some "works" are not eligible for copyright protection. For example, works that have not been fixed in a tangible medium are not eligible for copyright and can be copied. No search necessary.

Performances that have not been written or recorded, titles, names, short phrases, symbols, mere listing of ingredients or contents, ideas, procedures, methods, systems, processes, concepts, principles, discoveries . . . etc.

No need to search for a copyright for such works.

The logic being that there is no need to search for a copyright on things not eligible for copyright.



















montysimmons, Patent Prosecutor
Satisfied Customers: 234
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
montysimmons and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Does book's character names fall under same copyrights as the copyrights of the book (story) ?


 


What if I want to refer to a character but not the whole book ?


 


(The Lovecraft universe is filled with cross-referencing characters, which I am unsure which story they are "copyrighted" into....)

Expert:  montysimmons replied 1 year ago.

Copyright issues related to Characters are often difficult to fully appreciated and determine.


One way to look at the issue is to as the question below:


"Did the story make the character or did the character make the story."

IF the character makes the story then there is likely strong copyright protection.

 

The best way to explain is to provide you with some background law and sample cases.



Copyright of Fictitious Characters

The prevailing rule is that a character is entitled to separate copyright protection if the character was distinctly delineated in the plaintiff's work and the delineation s was copied in the Defendants work.


(a) Distinct Delineation -

 

In the case of characters created strictly by word (novel or poem) the character must be extremely well delineated, to the point that the character constitutes the story being told, rather than merely being a vehicle for telling the story.

 

Nichols v. Universal : Took a slightly less rigid view, suggesting that the character must be more than just a "type" and must be drawn in considerable detail.

 

(b) Cartoon Cases -

 

When the character at issue has a visual aspect, courts have been more willing to find copyright protection. The visual image, combined with conceptual qualities, gives the court something more concrete and detailed to work with, and more comfort that the character constitutes "expression" and not "idea."

Example - Anderson v. Stallone :

 

Anderson wrote a 31-page "treatment" called "Rocky IV" which he hoped to sell to Sylvester Stallone to be made into a sequel to the movie Rocky III. The treatment used the main characters from the earlier three Rocky movies. The court found that the Anderson's treatment, by taking the characters, infringed Stallone's copyright
protection in those characters. The court commented : "The Rocky characters are one of the most highly delineated group of characters in modern American cinema.


(c) Trademarks
Even when copyright protection is not available for characters, they may be
protected as trademarks.

 

Several Cases to consider

 

 

Nichols v. Universal Pictures 45 F.2d 119 (1930)


Holding: It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.

 

Warner Bros. Inc. v. Columbia Broadcasting System 216 F.2d 945 (1954)

Background


The well-known mystery-detective story, "The Maltese Falcon," was written by Dashiell Hammett, and was published serially in a magazine and then in a book by the publisher Knopf which held the copyright. In 1930, Hammett and Knopf conveyed to Warner Brothers, for $8,500, certain defined exclusive rights (alone with a copyright assignment) to the use of The Maltese Falcon in moving pictures. Warner's highly successful motion picture, starring Humphrey Bogart as the detective protagonist Sam Spade, was released in 1941. In 1946, Hammett granted to CBS the right to use the Sam Spade character and name, along with the names and characters of others in the Maltese Falcon, except for their use in the Maltese Falcon story. CBS broadcast weekly half-hour Sam Spade radio programs from 1946 to 1950. Warner sued CBS, Hammett, and Knopf, claiming that the programs infringed its rights to the Falcon story and characters under copyright law.

Holding /Rationale


Court interpreted the 1930 grants to Warner and held that they could not properly be read to have conveyed rights to the characters outside of the Falcon story. The court also noted that Warner had not objected Hammett's publication in 1932 of three stories using the Falcon characters, nor the use by CBS of those characters in a radio program.

 

The court also observed that Warner's purchase price of $8,500 would seem inadequate compensation for the complete surrender of the characters made famous" in the falcon book.

Characters Copyrightable

 

It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright. We conclude that even if the owners assigned their complete rights in the copyright to the Falcon, such assignment did not prevent the author from using the characters used therein, in other stories.

 

Anderson v. Stallone11 U.S.P.Q.2d 1161 (1989)

Anderson wrote a 31-page "treatment" called "Rocky IV" which he hoped to sell to Sylvester Stallone to be made into a sequel to the movie Rocky III. The treatment used the main characters from the earlier three Rocky movies. The court found that the Anderson's treatment, by taking the characters, infringed Stallone's copyright protection in those characters.

 

The court commented: "The Rocky characters are one of the most highly delineated group of characters in modern American cinema.



Walt Disney Productions v. Air Pirates

Purpose of Case


Cartoon characters are copyrightable.

(note: "D" is simply short for "Defendant")

Background


D published two cartoon magazines which depicted several Disney cartoon characters with their names, engaging in bawdy, promiscuous, and drug-ingesting behavior. Disney sued for copyright infringement.

 

D Argues : Claimed that the Disney characters were not copyrightable and that in any event their admitted copying was protected by the fair use doctrine and the first amendment

Holding / Rationale


Disney wins. Court rejected the claim that characters are never copyrightable. Comic book characters, which have physical as well as conceptual qualities, are more likely to contain some unique elements of expression.

Also note that the larger the group of characters that is selected, the easier it is to say that they "constitute" the entire story.

 

King Features Syndicates v. Fleischer

Purpose of Case


Making unauthorized toy replica of a copyrightable character is infringement.

Background


P was engaged in the creation and syndication to daily newspapers of a copyrighted comic strip known as "Barney Google and Spark Plug." Spark Plug was a new grotesque and comic race horse. D manufactured and sold a toy which was an exact reproduction of "Sparky."

Holding / Rationale

 

Infringement : Even though the D had not plagiarized all of the comic strip or all of its principal characters, it had infringed by copying "Sparky."

 

Detective Comics v. Bruns Publishing

Purpose of Case

 

SCOPE of copyright protection afforded characters can be broad.

"Wonderman" infringes "Superman"

Background

P owned the copyright in the comic book "Action Comics," which portrayed "Superman," while the Ds published and distributed a "Wonderman" comic book.

Holding / Rationale

 

Infringement : Both Superman and Wonderman are men "of miraculous strength and speed"; their "attributes and antics . . . are closely similar"; each sheds his ordinary clothing to stand "revealed in full panoply in a skin-tight acrobatic costume," the only real difference is that Superman is blue and Wonderman is red.

Although P is not entitled to a monopoly "of the mere character of a Superman who is a blessing to mankind, it may invoke copyright protection to the extent its work embodies "an arrangement of incidents and literary expressions original with the author."

 

 

 

YOU ASK

 

"book's character names fall under same copyrights as the copyrights of the book"

 

"What if I want to refer to a character but not the whole book ?"

 

 

ANSWERS

 

As noted above, copyright can attach to Characters of a story or book and the answer depends on the character.

 

If the Character "makes the story" then such a character is more likely covered by copyright.

 

 

I the character is well Delineated within the story, copyright rights are more likely to attach.

 

If characters are a "group of characters" more likely copyright protection attaches to the group.

 

Thus, one will need to consider each character or group of characters on a case by case basis using the information I provided above.

 

 

If you have more questions, please ask.

 

 

 

 

 

Customer: replied 1 year ago.

So If I use a non story making character, do I have to get copyright of book or I can use it ?


 


If I do, can I still be sued to have to prove that I have right to use character ?


 


 


I don't understand :


"If characters are a "group of characters" more likely copyright protection attaches to the group."


What is considered a "group of characters" ?


 

Expert:  replied 1 year ago.

YOU ASK

 

So If I use a non story making character, do I have to get copyright of book or I can use it ?

 

ANSWER

 

My position would be that one can use a character that does not make the story - - the character is simply used by the story. Subjective call and the more subjective the call the more risk a copyright owner will sue whether you are guilty of infringement or not.

 

 

YOU ASK

 

If I do, can I still be sued to have to prove that I have right to use character ?

 

 

ANSWER

 

You could still be sued and have to prove you are correct. Such is what usually causes law suits, a subjective issue and two parties with different opinions.

 

 

YOU ASK

 

I don't understand : "If characters are a "group of characters" more likely copyright protection attaches to the group." What is considered a "group of characters" ?

 

ANSWER

 

Consider the Thee Stooges. If one copied one character, say Moe, such would be less risky than copying Larry, Curly, and Moe.

 

When one copies all three characters ("the group") one has not only copied the individual characters, one has copied the artistic expression of using three characters and the way they interact. Much more likely the three characters make the story.

 

montysimmons, Patent Prosecutor
Satisfied Customers: 234
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
montysimmons and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 10 months ago.

Dear,


 


After contacting copyright.gov, I was redirected to you considering that: "Copyright does not protect a name, nor does it protect a person's likeness. It protects specific photos or artwork depicting a person. Trademark protects a name used in trade. "


I have contacted TRADEMARK Assistance centrer group and they told nothing regarding legal advice, and they can't recommend me someone who will. They also said that any search that I could do in their records would be uncomplete and to "hire a trademark attorney who could assist me with a full or comprehensive trademark search."


 


How do I proceed to clear these ? How do I track ownership of name and likeness for an actor or director dead probably 20-30 years ago ?


 


Also, I know that I can acquire right managed photo of actors to be used commercially with a creative common license, does this includes name also or just likeness or just the photo rights and the name and likeness of represented actor is another thing or... ??


 


 


 


I had an intellectual property lawyer investigate these and he told me that there were laws that strongly protect name and likeness of Hollywood actors that prevent their likeness or name to be associated in use with product without their consent since there had been many abuse in that regard in the early time of cinema. How does that work?


 


 


 


Also, acquiring so many rights (trademarks) for one project makes it costly and impossible to build a realistic project that would make any money, with about 355 rights-owned material.


 


 


Here's the list:


 


30 director photo


30 director likeness


30 director names


60 actor photos


60 actor likeness


60 actor names


5 studio logos


5 studio names


60 movie names


5 Mogul names


5 Mogul likeness


5 Mogul photos


__________________


 


355 rights


 


Any suggestions in how I could track the ownership of these and clear those realistically ?


 


 


Thank you.


 


Sincerely,


 


Frédéric Leclair

Expert:  Wendy-Mod replied 10 months ago.
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I’m Wendy, and I’m moderator for this Legal topic. It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

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Customer: replied 10 months ago.

try waiting

Expert:  Wendy-Mod replied 10 months ago.
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