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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 111683
Experience:  Attorney practicing all aspects of copyright/trademark law
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I'm writing a fiction novel and I had a couple IP questions.

Customer Question

Hi there,
I'm writing a fiction novel and I had a couple IP questions.
1. The book will likely reference a lot of characters from movies and comic books, and I'm wondering at what point I need to pursue rights. For instance, if a character has the same powers as Superman, but he is otherwise an entirely distinct character, is there a legal issue because I write about him in terms of his powers being "the same as Superman's"? Everything I've found online indicates I'd be in the clear, but my guess is I'm wrong or at least it's a grey area where a suit is possible if not likely.
2. Also need to figure out if I can summarize plots of movies or comic books (I'm talking short paragraph summaries) without seeking rights. Again, looks like I'm in the clear based on online research, but that's not to be trusted.
Thanks!
John
Submitted: 3 months ago.
Category: Intellectual Property Law
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you are using the name of a trademarked character, like "Superman" you can do so only if you are using it in a descriptive sense. What that means is you cannot name your character "Superman," but you can say "He has Superman like vision" or something to that effect. In that type of situation, it is being used as a merely descriptive term and it is called "nominative use." Same thing as saying in a novel, "He poured himself a stiff shot of Jack Daniel's," where as you are merely describing what the product is, not that you are using their trademark to cause confusion or play on the goodwill of the trademark.
2) For summaries of books, movies or TV shows, as long as the summary is in your own words for purposes of education/news reporting/editorial commentary/satire, your work is protected under fair use. This means you can give your opinion and interpretation of a copyrighted work, similar to Cliff Notes, where it is done in your own words and interpretation of the work.
Customer: replied 3 months ago.
Thanks - very helpful. It still seems like I could be on the wrong side of the grey area on #1, in that if I have a character that literally has Superman's powers (including vulnerability to kryptonite, etc), I'm not using Superman as a character, but I am exceeding the use of his name as merely a descriptor.
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your reply.
They do not have a trademark on the types of powers he has, just on the name. You would also have to be careful with the use of the word Kryptonite, since that too is trademarked and if you use that as the actual substance you could violate their trademark rights. You can say something like "Salt is his kryptonite," as that is a comparison and permissible. You cannot call your substance Kryptonite, which is a made up substance from Superman's made up planet of Krypton, that would violate trademarks.
Customer: replied 3 months ago.
Thanks again! Final clarification: if I have a group of people with Superman-like powers, and people start calling them "Supes" or "Kents" (or some other shorthand reference to Superman/Clark Kent) am I in the clear? And if so, does anything change if they dress in tights with an S on their chest?
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your reply
Then you are going to be getting into making derivative use of their trademarked names, even if you use a shorthand name, and the similar dress would also be a trademark issue playing off the goodwill of the trademarks. You are going to have to change those things so they are not so similar.
Customer: replied 3 months ago.
Apparently I was just kidding about that last clarification being the last one :)What if I'm treating comics as a coded treasure map a character is following? Clues are in names of home towns, origins of powers, etc. So I'd be summarizing super hero bios and specific storylines from various issues. If I mention fictional substances, towns and planets that are copyrighted, is there a copyright problem? Example: Superman's only weakness is Kryptonite, and that leads my protagonist to a "crypt" where our hero finds a clue to the mystery..."Thanks again!John
Customer: replied 3 months ago.
Oh - and to further clarify, the summaries would come into play in this context: "in issue #6 of Superman, he's defeated for the first time when Lex Luthor discovers Kryptonite is his weakness..."
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your reply.
That is a different issue, since you are using it to be merely descriptive. If you are using the names and the stories in comic books not as your main characters, but to describe things your characters are doing as you are saying above that would not violate the trademarks.

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