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Roger, Attorney
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Copyright Question Regarding Fictional Characters

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I have been working on a fictional character of the superhero genre. However, I just found out that Marvel Comics worked with Electronic Arts to create a video game that had a limited-run comic series tie-in. The comic series was a meager six issues in total, and ended in 2006. One of the characters in this series has the same "superhero" name as the character I have been developing. Not only that, but both my character and this other one that share the same name and are both Japanese. This other character apparently hasn't been used in any form of media since 2006. 


 


I have noticed that DC and Marvel comics have their own respective characters that share the same name. And between them, there doesn't seem to be any problem. I want to know if by publishing my character, who shares only the name and ethnicity with this other character, will I will be putting myself in any legal trouble or danger?

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

The general rule on issues of character copyrights basically depends on how recognizeable a character is and whether or not a reasonable person would confuse one for the other. Here's a good article you can read on this issue that discusses the legal status of these types of situations: http://www.rightsofwriters.com/2011/04/copyright-in-fictional-characters-can-i.html

Thus, it may very well be possible that you can use your character, but it is also very likely that Marvel or EA may claim you're infringing on their copyright, sue you for infringement, etc. Because they have more money, even if you're legally right, it may leave you in a tough situation.

These issues are very complicated, and you're looking at a legal battle in all likelihood. As I said, even if the character is not well know and you have sound legal footing, it could be a very difficult legal battle.
Roger, Attorney
Category: Legal
Satisfied Customers: 31019
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Customer: replied 3 years ago.
Relist: Answer quality.
This expert didn't give me a good enough answer. He explained that I "might" be facing a tough legal battle, even if the law is on my side. He didn't even tell me if the law WAS on my side or not. He linked me to a blog post that discussed a theoretical scenario with similar problems, but nothing in it directly answered my question. So, I am basically in the same boat as I was in before I asked my question. I am no closer to knowing if I need to rename my character or not.

Hello and thank you for your question.

Your previous expert provided good information based on the facts revealed in your question. There is no straightforward answer because in deciding the issue of infringement the law requires a balancing analysis based on all the facts. However, based on the facts that you do give - the name and ethnicity of the character in a superhero context - there is enough similarity to form the basis of a law suit for copyright infringement and Marvel would have the motive and means to protect its copyright. On the other hand, if the character's name and ethnicity is the same, but his other attributes, physical appearance, powers, family history, social setting, friends, adventures and other circumstances are different and uniquely your own, this may be enough to separate him from the Marvel character. It's not a sure thing for either you or Marvel, but Marvel likely has considerably more money to make its argument. If you want to avoid any possibility of running into problems, then you may want to rename the character. If you do not want to change the name, then at least you know that Marvel may in the future seek to challenge your use of the name for your superhero.

Here is a recent legal article that discusses the continuing uncertainties involved in this area of the law. http://www.lexology.com/library/detail.aspx?g=30db1a08-70ac-486b-9b30-877b2e613402

Please feel free to ask any follow-up questions.

Thanks to Myra for her post.

 

As we've both indicated, there is no clear, black and white answer to this question. Who wins depends on how recognizable this character's name is. If it is an obscure character, then you likely have footing to claim that your character doesn't infringe on Marvel or EA.

 

HOWEVER, there's nothing to stop Marvel or EA from suing you and claiming that infringement exists. If that were to happen, you would have to defend against the case, which could cost you tens of thousands of dollars to defend.

 

The point I was trying to make is that even if the law is on your side (which it likely is if this is not a mainstream character), fighting for the right to use the character's name may not be worth it financially.

 

I hope this clarifies things - - and thank you for allowing Myra and I to assist.

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