My question is how long before copyrighted material becomes public domain, and what actually constitutes a copyrighted concept, phrase or word?
Examples: Could I use these phrases/words in a work of new fiction?
Jedi Knight
Harry Potter
Clan Ventrue
Lycan
Bilbo Baggins
Uktena tribe
Monty Python
Obfuscate (as pertaining to a vampiric power)
D & D
Next, is there a legal difference between simply referring to these concepts/words in passing and/or using them in context in a work of new fiction?
Here are their definitions, direct from the U.S. Patent and Trademark Office:
“A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Trademarks, copyrights and patents all differ. A copyright protects an original artistic or literary work; a patent protects an invention.”
And a trademark doesn’t prevent you from using a phrase, it only prevents you from identifying something as something it’s not. I could write a novel where one character asks another for a Coke, or where the main character says he can’t stand Coke, and if that’s the only choice, he’ll take a water instead. What I can’t do is make a beverage of my own and call it Coke, since that would make people wrongly think that my beverage was associated with the Coca-Cola company. I probably couldn’t even call a beverage something like Koka, since that would still give the wrong impression. But when I’m referring to actual Coke, I can absolutely use that word to refer to it.
The OP is mixing up about 600 issues in what seems to be a simple question. Some of them don’t have any answers, except for “it depends.”
First, here’s a chart summarizing current copyright law and termination status. You need to study it to figure out what applies to what when. Since the OP’s list contains contents created under different times and different types of owners, the termination dates vary all over the place.
But almost none of that has much relevance to the question. Not that the question itself is clear enough to understand.
Can you refer to those terms in fiction? Of course you can. You just referred to them here, didn’t you? That’s perfectly acceptable and there is no difference between fiction and nonfiction in that regard. Anybody can refer to anything at any time and not violate copyright. Telemark is correct that phrases can’t be copyrighted, but phrases can be trademarked. Even so, you can refer to any trademarked item at any time, and you don’t need to worry about whether it’s trademarked or about using a symbol. Only the trademark owner has to worry about that. However, if you are selling a product that could be confused with the original you are probably in violation of trademark. Nobody has to prosecute copyright. That’s absolute. However, trademark protection has to be vigorously maintained so lawyers are always standing ready to blast you with a cease-and-desist letter.
But I don’t think that’s what the OP is asking. It sounds to me like the question is about fanfiction. That’s a much harder question to answer. Obviously people write fanfiction about Harry Potter and Star Wars and other stuff all the time. It is probably true to say absolutely that if you are trying to sell such fiction, you’re violating copyright. (Parody is protected, but almost every commercial parody I’ve ever seen takes care to vary the naming so that it doesn’t run afoul of trademarks.) If you just post it to share with others, the legal status is murkier. There have been times and places and cases in which authors have gone after fanfiction, and usually they have been successful in getting it taken down, though that’s not absolute.
Whether individual characters are so identifiable that they have achieved copyrighted status is another area so murky that only an experienced intellectual property lawyer should ever get close to.
There are just so many variables that it comes down to the specifics of each individual case. Nobody can answer a question as totally vague and general as the OP’s.
Ok…sorry for being too vague, I will try to be specific…
I am writing a work of fiction in which characters (totally made up by me and appearing in no other work) of the book are playing various roleplaying games. The chapters include stories designed around the playing of these games, stories that again are made up entirely by myself and do not appear in any form or fashion in any literature published by the game publisher.
In my mini-stories I include such phrases/words/concepts as:
Vampire clan names
Werewolf tribe names
Vampire discipline names and their associated powers
These examples would all come from White Wolf games (ie. Vampire and Werewolf)
The characters in the stories are playing these games, and I use these words to accurately describe the game they are playing, but the stories themselves are made up by me. Also the book is not itself strictly about any one game or set of games, rather the stories are vignettes within a larger story.
Is this legal or do I have to change the words to something generic or unique…or would even that be deemed illegal due to the obvious similarity?
Given that White Wolf’s reaction to fan works has generally been to grant permission , I doubt very much they’d respond negatively to your characters playing one of their games- unless you show them in a bad light.
As an aside, this is my first time posting on this site, and I offer an apology immediately if I have erred. I have just read “Sticky: Don’t ask for medical/legal advice here, please”, and realize I might have overstepped the bounds.
Again, if so, I apologize. I am writing a series of books that I indeed hope to publish, and am merely trying to avoid breaking any copyright, trademark, or other intellectual property laws, and thought that probably someone would be able to point me in the right direction.
It absolutely would not show them in a bad light, as a matter of fact, as a White Wolf fan myself, I rather hope that it might contribute somewhat to a renewal of interest and increased exposure for their games, much like the D&D session in the movie ET did for that game.
Although my understanding of Wizards of the Coast is they are not near as openly accepting as you say White Wolf is…
This is very true. Back when they acquired TSR, WOTC went lawsuit happy. They sent cease and desist orders to a Norwegian folklore site for using the word “kobold”. They attempted to shut down any and all D&D discussion sites.
White Wolf, on the other hand, responded to the many fan sites by linking to them on their official site.
You can always legally write about real life in the real world. If you want to write a scene about people playing games, you can do so.
You do have to use you own words, of course. You can’t simply copy chunks of their writing, whether settings or instructions or dialog. I don’t know anything about the game so I don’t know how much individual creativity has to go into writing these scenes. (I also don’t understand why anyone would read a book about other people playing a specialized game, but, hey, that’s your problem.)
Wizards of the Coast does indeed have a reputation for litigation. I can’t predict how a real-world editor would react because that will depend entirely on what exactly you write. However, in concept concepts are not copyrightable.
I am very comfortable that my stories are not “chunks of their writing”, as they have come entirely from my own imagination. And I believe I understand what you mean when you say concepts are not copyrightable. I guess my main concern has been if the individual words are…
In the game White Wolf has broken down vampires into various clans, for example. And I believe that the names of these clans are unique to White Wolf, so I am wondering if referring to my characters as members of a specific clan, as an example, would be legal.
In any case, there cannot possibly be anything wrong with using words like ‘lycan’ (as short from lycanthropy) and ‘obfuscate’ because they’re not tied to any specific IP.
Well, I think you were a bit strong there with the caps, since you follow it almost immediately with a less-than-declarative “almost certainly trademarked” and then made another claim without a cite.
I searched the database as well, and found that the various vampire clan names used by White Wolf are in fact trademarked, but as Goods and Services in the nature of book titles…indicating I could not use it for roleplaying book titles or for the name of a series of books…
Citation as follows:
IC 016. US 002 005 022 023 029 037 038 050. G & S: Role playing game equipment in the nature of game book manuals; Series of fiction books. FIRST USE: 19910601. FIRST USE IN COMMERCE: 19910601
so if I am understanding the nature of the trademark I could not market any books with that title, but it doesn’t cover the use of the word within a book…
Even if White Wolf had tried to claim a trademark on “obfuscate”, it would probably have been thrown out on grounds of generality if it’d ever made it to court. Anyone, regardless of whether they’ve read White Wolf manuals or played White Wolf games, understands “obfuscate” to have roughly the meaning they’re using it for. On the other hand, the D&D folks could and probably do have a trademark on “Mordenkainen’s Disjunction”, since “Disjunction” doesn’t really tell you much about what the spell does, and “Mordenkainen” is an invented word that doesn’t mean anything at all beyond what the D&D folks intend it to mean.