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Roger
Roger, Lawyer
Category: Intellectual Property Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Ive written a kids book in which Santas sleigh pulled by

Customer Question

I’ve written a kid’s book in which Santa’s sleigh pulled by one exhausted reindeer (Rhonda) crashes on the barn roof of an alpaca farm. The reindeer has a barely blinking pinkish nose. (The other reindeer are sick at the North Pole, having consumed all the Christmas chocolates.) Seven alpacas come to Santa’s aid by flying through the air with Rhonda to deliver presents.

The story is followed by non-fiction material, including a page comparing alpaca and reindeer adaptations to the extreme climates of the high Andes Mts. and the Arctic. One fact will be that scientists have found that reindeer noses do glow reddish, at least when viewed with infrared light. The rosy glow is caused by the fact that reindeers have an unusually dense distribution of blood vessels in their nose which keeps their nose warm and unfrozen when eating lichen through deep snow in temps down to -40 degrees.

Will I run afoul of Rudolph the Red-Nosed Reindeer intellectual rights by having a pinkish nosed reindeer whose nose emits a rosy glow? Is “Rhonda” too close to “Rudolph?”
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Roger replied 1 year ago.

Hi - my name is XXXXX XXXXX I'm an Intellectual Property litigation attorney. Thanks for your question. I'll be glad to assist.

 

In order to be liable for copyright infringement, it must be proven that you have violated on of the exclusive rights owned by the copyright owner. These are reproduction, distribution, preparation of derivative works (also called adaptation), public display, and public performance.

 

In order to establish infringement, it would have to be shown that (1) you "copied" from the original work and that (2) the elements copied or otherwise used were an "improper appropriation" (the use of substantial and recognizable elements).


Here's a very good link you can read about this subject: http://www.whitecase.com/files/Publication/0c3e727d-4944-4529-80d9-81b79d3a7bff/Presentation/PublicationAttachment/8dff9d5a-d6ff-4039-bdf5-83bf7e7e25cb/Legal-Requirements-for-Bringing-Copyright-Infringement-Lawsuit.pdf

 

The botXXXXX XXXXXne is that you're not writing about Rudolph, although the storyline may have some similarities in nature, it's not substantially the same.

 

I can't promise you that you are immune from being sued if some company/copyright owner claims that you're in violation of their copyright. Even if it turns out in your favor - - someone could still sue. The most likely claim would be that you've made a derivative work/adaptation of the original story.

 

If you publish the book, issues like these will be reviewed closely by the publisher to ensure there is no problem with copyrights.

 

You can consider your writing as a whole and consider the infringement elements that must be proven to determine if you think there's an issue.

 

Thanks for your question, and please let me know if you need anything further.

 

 

 

 

Customer: replied 1 year ago.

Hi Kirk,


 


Thank you for your response. I appreciate the link you sent. From that I gather that infringing requires substantial similarity to the original work. Does “the work” generally mean the work as a whole or an important detail. Does the court tend to read the definition of “substantial” broadly or more narrowly? The article refers to the “ordinary observer” test, which requires the observer to see substantial similarities between the original work and copied work. What does “substantial” mean to the court? That word lends itself to a variety of interpretations. Is it likely to be one major characteristic (red nose)? Is it enough that an observer would think, “Oh, a nose like Rudolph.” Or does it have to be a close copy of the character (teased red nosed reindeer who becomes a hero in the end)?


 


Would the fact page in the back that talks about the reindeer’s adaptation to brutal cold - dense blood vessel network in the nose causing a rosy glow – make it less easy to say this idea was copied? That fact that the animal is also a reindeer shouldn’t matter. The myth of flying reindeer at the winter solstice goes back hundreds and hundreds of year to Arctic rituals of involving hallucinogenic mushrooms! That surely is in the public domain – the myth, not the mushrooms.


 


As far as the story goes, they both involve Santa, a sleigh pulled by one or more reindeer, a reindeer with a colorful nose (red, pink). Other than that the story lines have very little in common. And from your comment, it seems that unless I’m writing about that specific red-nosed reindeer, Rudolph, the two stories are not substantially the same.


 


Would it be better to name the reindeer something like Freida or Ethel rather than Rhonda? Alliteration – Rhonda Reindeer – works well in children’s books. But it might provoke the similar sound of Rudolph the Red-Nose Reindeer in the mind of the observer. Would this be an infringement element that could be brought up?


 


Do you know where I would go online to find a copy of the Rudolph copyright or trademark? I did not see it at the site of the company that owns the copyright.


 


I am the publisher as well as the author; that’s why I’m asking about this.


 


Again, thank you for your help.


 


Barb

Expert:  Roger replied 1 year ago.
The test is subjective, and it's up to how a court views the issues. There's just no BRIGHT LINE rule with this type of situation (as with most IP issues). They are very fact sensitive and subjective to what the court believes a reasonable/objective reader would think the stories are substantially the same. Usually, the works are viewed as a whole - - not specific factors.

The name of the character should not be an issue; also if it doesn't appear that the stories are substantially the same, then you should be in a good position.

The copyright information should be available at the US Copyright Office (www.copyright.gov), and the trademark information should be available from the US Patent and Trademark Office (www.uspto.gov)

To get a specific opinion on this, you should have a local attorney review your work and the copyright information, but this is a good start in the right direction.

Please let me know if you need anything else.
Roger, Lawyer
Satisfied Customers: 26613
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you very much. I appreciate your time and expertise.


 


Barb

Expert:  Roger replied 1 year ago.
No problem. Glad to assist.

Please let me know if you have any additional questions.

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