It’s my understanding (and I could be wrong) that mithril comes from “The Hobbit” and/or “The Lord of the Rings.” However, I seem to recall the term mithril has and is used in other fantasy universes; Dungeons and Dragons and World of Warcraft to name two. Is this not a copyright violation? I read recently that the Tolkien estate sued TSR during the early Dragonlance years, so Hobbits weren’t used as a character class, Halflings were. Why is mithril allowed, but not Hobbits?
Also, I believe I read a story, outside the Marvel Universe, (wish I could remember what it was) where adamantium was used. Wouldn’t this be a copyright issue as well? Unless, of course, Marvel gave it’s permission.
Yeah I’ve wondered about this too. I guess the more general question is:
When you copyright a book (or a universe) exactly what do you own the rights to? Every single word or term that you come up with?
This is actually about trademarks, not copyrights.
D&D uses the spelling “mithral” so they kind of squeak by. In addition to “hobbit” they also can’t use “ent” (thus “treant”).
You own the rights to the text, and any derivative works (e.g., movies, sequels) involving the characters.
You do not own any individual words unless you trademark them. I may have coined “transphylite” (as someone who has had a species change operation), but I don’t own it and anyone else is free to use it.
Marvel has trademarked a lot of their terms (notoriously in their joint trademark with DC of “superhero,” and absurdedly when they marked the word “Dad” as a trademark on one of their covers), but it’s possible they never bothered with adamantium. It costs money to trademark, and they may have figured it either wasn’t worth the cost. Or else the word was used elsewhere previously.
Actually, it’s about copyright. Trademarks are a distinctive name, sign or symbol used in trade/business to identify and distinguish that business or services in the marketplace from other businesses or services. Mithral, hobbits, ents, etc., are not doing business or providing a service. These are not products or services being sold (at least, not in the real world).
With the statutory limits, you can pretty much copyright anything. Beyond the basic protections of what is defined as a “work” (i.e. generally speaking, a book, a paper, a piece of art, a poem, in its entirely), the extent of available copyright protection is directly proportional to your willingness to defend it.
So, as an example, JRR Tolkein has a copyright in the work “Lord of the Rings.” He can prevent the entire book from being appropriated. When it comes down to derivative works (e.g. sections of a book, a character study), the statute becomes less beneficial to him and more dependant on case law and precedent, and limited by notions of Fair Use. When such avenues do not answer his issue (e.g. is mithral copyrightable?), he has to defend in court his ability to keep his control over it. To a point, the copyright laws (US anyways) do not allow you to copyright a name. Along that same vein, does copyrighting the name adamantium give the author the needed protection to secure the work as a whole, or is it merely a new name, like Wendy, which can be used without making infringing the copyright as a whole?
I can’t answer that question, and since this has not been litigated, there is now ample evidence that can be used where whole new copyrightable works exist containing those newly created words. I haven’t done any real copyright work in some time, but I can assure you that the firm I used to work for wouldn’t go after somebody because they used “warp speed” in their work.
So, when Marvel copyrighted the name Captain Marvel it was to “protect” the name from unfair use, specifically by DC? Although, in real life it was done as a giant “Screw you” to DC.
But some trademarks are Superman, Spider-Man, Batman, Superhero, X-Men, Wolverine, Star Trek, Star Wars, Lord of the Rings, etc.
If Tolkien has trademarked “Mithrail,” then there would be restrictions on how others use it. He didn’t.
Not sure what you mean by this. The extent of copyright protection is defined by law. The copyright holder can, at any time, sue people for violations. But you always have the same rights to sue; unlike trademarks, you are not required to defend your copyright. Your copyright protection is absolute: it lasts for the term of the copyright, whether you defend it or not.
Your definition is not what is meant by derivative works, which involve things like movies of the work or sequels. Those are covered by copyright law: they cannot be published without the author’s permission.
Taking sections of a book, as you mention, is a copyright violation unless it can be deemed fair use. The fair use restriction is flexible, but appropriating a section of the book is probably not fair use; taking a few paragraphs for the purpose of criticism is. Quoting short excerpts is allowed. But if you take an entire chapter, you’re treading on a violation quite heavily.
Now a character study is a bit of a gray area, but any major work (say, Gandalf’s early adventures) would be a copyright violation, since it’s derivative.
We’ve already established it: it is not (you say so yourself a couple of sentences later. You cannot copyright a single word. You can, however, trademark a word, and it is possible to trademark “mithral,” though Tolkien did not.
No, no, no. That’s trademark law, not copyright law. You do not have to prove your ability to keep control over copyright – copyright itself means you have that control.
What “to a point”? They do not allow it. Nothing in the law says a name can be copyrighted, and the law specifically exempts a title (i.e., “Lord of the Rings”) from being copyrighted. Nothing about copyright law prevents me from naming my next book “Lord of the Rings.” Because it’s trademarked, I cannot, but if the trademark didn’t exist, I certainly could under copyright law.
Once again, you cannot copyright a name. You said this yourself in the previous sentence. The two sentences are completely inconsistent.
Yes, but you can bet Paramount’s lawyers would go after anyone who used “Star Trek.” And, according to the Patent Office, there are at least nine trademarked uses of “Warp Speed”; it doesn’t look like Paramount owns any of them. If someone used the term in any of those contexts in a work of fiction, you can bet that the trademark owner’s lawyers would get busy on it as soon as they discovered it. They wouldn’t bother suing, but they would send out a letter about the proper use of copyright in order to defend it.
Here, there’s not even a chance that Marvel would have a leg to stand on. “Adamant” and variations of it (meaning a fantastically strong material) has been in use for ages. Heck, Tolkien uses it in his works, though from context, he seems to mean “diamond”.
On Ents, Hobbits, etc., the Tolkien estate might not have had any legal justification for stopping TSR from using the words. But their lawyers can nonetheless send out intimidating letters, which might have been enough to convince TSR to voluntarily stand down.
What if you view it as a concept, not just a word? For instance, Tolkien might not have been able to enforce a copyright the invented word “ent,” but could he enforce a copyright on the invented concept of “giant sentient trees that live for eons and walk around, etc.,” thus preventing other authors from using a similar concept even if they give it a different name?
Quite frankly, if an author wants to use something like Mithril or Adamantium s/he should do what Tokien and Thomas did which was create their own word history and myth around it so that it is intrinsicly their own. It will also resonate within the story much better than pulling a pre-existing word with no meaning outside that universe. Elf is different, as is dwarf as they are extensively part of the mythos of our own world. But build on that or create anew. In addition to having your own resonate item and word, you won’t have to worry about lawyers.
I just wanted to toss something here for the record. It wasn’t during the Dragonlance bit that TSR cease and desisted but after the early paperback rule books (which I have) which features ‘hobbits’ and ‘ents’ and suchlike. Once they got more organized (and I presume got some lawyerly attention) suddenly for the hardback PH and MM and such they were ‘halflings’ and ‘treants’.
Also, I believe the first edition Monster Manual (which I also have in the attic someplace, I think) featured Lovecrafts Cthulu mythos which were removed for later printings.
Yes, not only are they part of the respective enterprise, they have their own product as well (comic books, movies, etc.).
I’m not going to go through the analysis for “Mithrail” as a trademark of any of the trilogy, but I’m pretty sure that his trademark would have been narrowly defined in the class of providing paper good, maybe entertainment. However, the point is that he would also have to use the name Mithrail in his works, such that it identified him, and as far as history has shown, that has not been the case. It’s going to be pretty difficult to establish a tm for Mithrail when you title your series Lord of the Rings, and go by the author’s name, rather a production company.
Copyright law has the most gray area of the traditional intellectual property laws. Fair use, for example, which you seem to often neglect or downplay in your posts, places a new analysis into the copyright issue, which is defined by common law, case law, and subject to the changes of society (much like the Constitution, but with less scrutiny, practically speaking). You are required to defend all intellectual property law to some extent, just that, again practically speaking, the stronger the ip right, the more avenues of summary judgment are available to the rights holder.
Taking sections of a book, as you mention, is a copyright violation unless it can be deemed fair use. The fair use restriction is flexible, but appropriating a section of the book is probably not fair use; taking a few paragraphs for the purpose of criticism is. Quoting short excerpts is allowed. But if you take an entire chapter, you’re treading on a violation quite heavily.
[/quote]
My apologies, perhaps I should’ve been more clear, I meant to say “sections of book” in the same vein as “character study,” that such material is appropriated to do an analysis or literary study. Derivative works aren’t that closely defined either, e.g. if I annotate a book or movie, in its entirety, such that it’s another “work” in of itself, then I should have fair use protection, even moreso, if used for criticism, particularly, if it is appropriate to do so.
Warhammer 40,000, the tabletop miniatures game uses the word “adamantium” in it’s game related fiction, or so I’ve heard. A bunch of other stuff uses the term according to Answers.com, but I think some of their claims are inaccurate; IIRC it’s “adamantite” in D&D, not adamantium. I do remember the adamantium armor in MOO2, however.
It should also be noted that the Tolkien estate managed to legally intimidate TSR at a time when TSR was only months removed from being run out of the kitchen of someone’s house in Lake Geneva. If the legal mumbo-jumbo had begun in the late 80s-early 90s when TSR was THE powerhouse gaming company, I think the outcome may have been different.