Can copyright or trademark protection of names expire because they have become common? Can the copyright protection of the own names from books, like the names of the monsters, expire because they have become a common words? For example, if a very popular MMORPG game have included giant spiders called 'aragogs', and J.K. Rowling didn't protest, could another party use the name 'Aragog' claiming, the copyright protection has effectively expired, because it's now the word as common as 'ogres' or 'dragons'? Are there any similar court cases? I'm interested mostly in Western World, especially USA.
Copyright does not Protect Names at All Names and book titles and other short phrases are never protected by copyright, whether they are common or uncommon. The US Copyright Office Circular 01 &quot;Copyright Basics&quot; states on page 2: Copyright does not protect: Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down) Titles, names, short phrases, and slogans Familiar symbols or designs Mere variations of typographic ornamentation, lettering, or coloring Mere listings of ingredients or contents For more information, see Works Not Protected by Copyright (Circular 33) Circular 33 &quot;Works Not Protected by Copyright&quot; states on pGES 2-3: Names, Titles, Short Phrases Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words. Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include: The name of an individual (including pseudonyms, pen names, or stage names) The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work The name of a business or organization The name of a band or performing group The name of a product or service A domain name or URL The name of a character Catchwords or catchphrases Mottos, slogans, or other short expressions Under certain circumstances, names, titles, or short phrases may be protectable under federal or state trademark laws. For information about trademark laws, visit the U.S. Patent and Trademark Office website or call 1-800-786-9199. Use of a name from a previous work can be one element that makes the later work a derivative work, but the name of a character alone will not m make a later work derivative. There must be significant and distinctive aspects of the source work (not merely common or generic aspects, or bare ideas) that are sufficiently original to be protectable, and those must be used in the later work to make the later work derivative. Even then a fair use defense may apply. Having giant spiders called 'aragogs' would probably not alone be enough to make a work derivative of a Harry Potter novel, but if the detailed description and behavior of those monsters was used, it might possibly do so. Failure to object to an infringement does not forfeit copyright, and later infringements can still have legal action taken over them. Distinctive Characters: Court Cases The OP asks: Are there any similar court cases? In Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930) the famous Judge Learned Hand wrote: If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's &quot;ideas&quot; in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. 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.[Emphasis added] In he later case of Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989) the court wrote: The precise legal standard this Court should apply in determining when a character may be afforded copyright protection is fraught with uncertainty. The Second Circuit has followed Judge Learned Hand's opinion in Nichols v. Universal Pictures, 45 F.2d 119 (2d. Cir. 1930), cert. denied, 282 U.S. 902 (1931). Judge Hand set forth a test, simple in theory but elusive in application, to determine when a character should be granted copyright protection. Essentially, under this test, copyright protection is granted to a character if it is developed with enough specificity so as to constitute protectable expression. Id. at 121. ... The Rocky characters are one of the most highly delineated group of characters in modern American cinema. The physical and emotional characteristics of Rocky Balboa and the other characters were set forth in tremendous detail in the three Rocky movies before Anderson appropriated the characters for his treatment. The interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie are central to all three movies. Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author. Names may be Protected as Trademarks A name may be protected as a trademark. This means that no one else can use it to promote or label a product or service of a similar type without permission. Trademarks do not expire as long as they remain in use. But trademarks only protect against uses &quot;in trade&quot;, that is uses that identify a product, or are used to advertise that product, or are used to imply endorsement, approval or sponsorship of a product. If a reasonable person could be confused as the the source of a product, or who endorsed it, then the use of the mark may be infringing. Trademarks are also country-specific. What is a protected mark in country A may be quite unprotected in country B. While trademarks do not expire if they remain in use, if a term becomes &quot;generic&quot; and loses the distinctive association with a specific brand or maker, then it may also lose protection as a trademark. At one time Xerox feared that its name would become a generic synonym for &quot;photocopy&quot; and that it would lose trademark protection. It undertook to discourage people from using the mark &quot;xerox&quot; in connection with photocopying using non-Xerox equipment. Similarly the maker feared that &quot;Kleenex&quot; would become a generic synonym for &quot;face tissue&quot; and took steps to avoid this. However, a single use would not cause this result, it would require widespread use amounting to a change in the language for such distinctive marks to lose protection. I strongly suspect that &quot;Harry Potter&quot; has been protected as a trademark in a number of countries. I am far more doubtful that &quot;aragogs&quot; has been, or even could be, protected as a trademark. The word &quot;aragogs&quot; is one fictional element in the HP books, but it is not used to label, identify, or advertise those books (or related products). Thus it is probably not protected. And even if it were, using such a term in the text of a work of fiction is probably not infringing I could write a mystery novel in which one of my characters has a Coke without seeking permission, and it would not be infringing the soft drink company's trademark. Unless the &quot;aragogs&quot; appear in the title, blurbs, or advertising of the fan novel, or are in some other way used to identify or advertise the novel, they would not infringe on a prior trademark of JKR's even if she has obtained one.
We cannot and will not try to answer &quot;what should i do?&quot; questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games.
The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant.
Under Swedish copyright law, a work such as a movie is protected for 70 years after the death of the "creator". It is unclear who the copyright holder is, but it has not been 70 years since the film was made. Unless it was explicitly "released into the public domain", it is still protected, so you can get sued.
Can the word &quot;Cola&quot; be used for commercial purposes? It depends on what you want to do with it, but most uses would be permissible. &quot;Cola&quot; is, as you note, a generic term, comparable to &quot;trout&quot; or &quot;sugar&quot; or &quot;beer.&quot; Still, generic words may be subject to trademark protection. Even &quot;coca&quot; is a generic word. Such protection is, furthermore, not exclusive; trademark protection is more subtle and complex than most people realize. There might be a company called &quot;Cola&quot; that operates guided outdoor activities, but that wouldn't necessarily prevent an unrelated company of the same name from pursuing the same business in another jurisdiction. Similarly, it might not prevent a company that repairs household appliances in the same jurisdiction from calling itself &quot;Cola.&quot; For example, in the US, you can buy &quot;Dove&quot; personal care products and &quot;Dove&quot; chocolate; they are sold under distinct trademarks. The central criterion is confusion: trademark protection primarily prevents others from confusing consumers about the source of goods or services. Even if a word or phrase is unambiguously a protected trademark, there are still allowable uses, most notably to designate the product, service, or company associated with the trademark. For example, if someone wants to tell a story about a bottle of Coca Cola (or even to claim &quot;our product is better than Coca Cola&quot;), the owner of the Coca Cola trademark cannot use trademark protection to prevent them from using the phrase &quot;Coca Cola&quot; in the story (or to make the claim). For a specific opinion about a specific use of a specific trademark, you should engage a qualified lawyer with experience in trademark law.
The duration of copyright varies according to different laws; however generally copyright lasts for 70 years after the death of the author(s), and you can check if the author died on Wikipedia or on the internet. Once copyright expires, books are considered public domain and you don't need permission to reproduce or copy etc. Books, as well other types of creative works listed at 17 USC §102, are automatically protected by copyright even without a copyright notice. You need the permission of the copyright owner to reproduce or transmit such works. On top of that is generally accepted to make a copy (often referred as backup copy) of a work protected by copyright for you own benefits. That means that if you bought a printed book and you want to read on your e-book reader, you could scan it and store on your device. However you must keep in mind these: It's meant for your personal use; You can't share it You'll be considered responsible if somebody else gets a copy of that book Furthermore in some countries, laws explicitly forbidden to scan the whole book without the permission of the copyright owner. It's worth to ask the publisher for permission to scan it if you want to read on you e-book reader for personal use. Some publishers offers digital copies of their book (either for free or for a very small charge) and you'll get a better copy than what you could scanning the book.
Copyrights You may use the circle c mark (c) normally with a year, the name of the author of the work and possibly the words &quot;all right reserved&quot; without any legal permission. This gives you more rights legally than you would have from the copyright rights that arise automatically upon the creation of the work. Registering the copyright with the copyright registrar simply gives you additional litigation rights and must be done before you file a lawsuit to enforce a copyright. &quot;All rights reserved&quot; means you aren't granting a license to people who see the website to republish it or use it themselves. &quot;All rights received&quot; would mean that you are using someone else's copyright with their permission, but would more commonly be expressed &quot;used with permission of [name of copyright owner].&quot; Trademarks A trademark arises from use in commerce that causes people to associate your mark with your goods and services. You may use the superscript letters TM to claim a common right trademark in a trademarkable item such as a logo or slogan by affixing it to the claimed mark. This is a basis to sue for trademark infringement but requires proof of many elements that can be dispensed with when the Patent and Trademark Office includes a trademark in its principal register following a formal application to them. What you can't do. You may not say &quot;patent pending&quot; if you have not applied for a patent, may not claim that something is &quot;patented&quot; when a patent has not been approved, and may not use the circle R mark (R) if your claimed trademark has not been including in the principle register of the Patent and Trademark Office. (This answer is based on U.S. law, but copyright and trademark laws are quite similar on these points internationally.)
First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not.