# Could you (legally) write a novel about the relative of a copyrighted character? **URL:** \ **Category:** Cafe Society\ **Created:** [June 13, 2009, 6:03am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646 "2009-06-13T06:03:54Z")\ **Posts on this page:** 12\ **Page:** 3
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [June 14, 2009, 9:45pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/41 "2009-06-14T21:45:59Z")
> [@Markxxx](#): > > The problem with copyrights is there is no definitive guide. It really depends on the judge reviewing your case if you get sued. Fan fiction falls in that “gray area.” Most judges which have cases of fan fiction brought before them, will not find for the author of the character IF the fan fiction is non-commerical. It falls into a “fair use” type of deal. Provided it’s an original story. BUT if you’re tyring to sell it, then you’d most likely lose. This is incorrect. Simply being non-commercial isn’t enough to qualify the use of copyrighted material as fair use, it’s just one element that is to be considered when deciding whether it’s fair use or not. If a fanfiction author isn’t making any money off their fanfiction then the copyright holder is a lot less likely to bother taking them to court and it would help the fanfiction author’s case if they do go to court, but it’s not a surefire legal “out”. Non-commercial entertainment is also not necessarily going to be looked upon as favorably as non-commercial educational or critical material. The US Copyright Act of 1976 specifically contrasts use “of a commercial nature” with “nonprofit educational purposes”, not ALL non-commercial purposes. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [June 15, 2009, 12:56am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/42 "2009-06-15T00:56:50Z")
> [@Exapno\_Mapcase](#): > > As for your not thinking it appropriate, let’s try a different tack. What would you say, Martini Enfield, if hundreds of companies were to spring up selling cheap, flimsy imitations as authentic Martini-Enfield rifles, rifles that wouldn’t sell at all if they were named Cosmopolitan-Outfield rifles? What if your family still owned the rights to the original Martini company. What would your position be then? Funnily enough, that’s _exactly_ what gun makers do. Almost every arms manufacturer on the planet makes a Colt Peacemaker and Colt M1911 reproduction, despite the fact that Colt are still in business and manufacturing guns today (including the Peacemaker and 1911, FWIW). You can’t copyright or trademark gun designs, apparently, but you can patent technical innovations within the mechanism or operating system of the gun itself. [(Link to interesting thread on the subject](http://boards.straightdope.com/sdmb/showthread.php?t=501667)) But with regards to what you were getting at with your hypothetical: Honestly, I think it depends how commercially successful the design was during my life. If it made bucketloads of cash for me and my descendants, then I would likely feel that, with the money properly invested, that trying to stop people from making the rifle 100 years later was being more than a bit selfish, _unless_ they were still innovating and tinkering with the design. Then I’d be OK with it, but not indefinitely. The only reason many shooters nowadays can own a Single Action Army pistol, a Winchester '73 rifle, or an M1911 is because the patent expired and now anyone is free to make them- revolver design was slightly derailed for a while at one point in the 19th century because Smith & Wesson had the exclusive licence to the patent patent on bored-through revolver cylinders for centrefire cartridges (ie, the type used in all modern revolvers), so everyone in the US had to wait until the patent expired before they could start making “modern” revolvers, which is why they were still making cap & ball revolvers in the 1870s. So as you may have gathered, I’m not a fan of “exclusive rights” to commercial products lasting for stupidly long periods of time. 😉 By the way, **Exapno** , I wanted to say thanks for your replies so far- they’ve been very interesting and educational! ---
**Author:** ![TBG](https://avatars.discourse-cdn.com/v4/letter/t/c89c15/32.png) [@TBG](https://boards.straightdope.com/u/TBG)\ **Post date:** [June 15, 2009, 7:18pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/43 "2009-06-15T19:18:43Z")
> [@Isamu](#): > > Wasn’t the title character of, Charles in Charge, subtly (or not so subtly) written as the same character Chachi (whose real name was Charles) from Happy Days? I wonder if they paid any royalties because as far as I remember they never came out and said it was the same character, but they hinted at it and left the question open. Not open at all. There is no possibility they are the same character. Happy Days was set in the 50’s and 60’s, Charles In Charge was set in the 80’s and 90’s. The only similarity is the character’s first name, the character’s actor, and the actress playing the character’s mother. There may have been an occasional in-joke (I recall a time where Charles was incredulous at someone using a Chachi catch phrase) but that was all it was, an in-joke. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [June 15, 2009, 7:37pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/44 "2009-06-15T19:37:02Z")
> [@constanze](#): > > Another possibility: James’ brother asked James to be godson for the kid, so you get James, and because he was the first offspring, got the junior. Maybe the brother realized that with all that romancing around, James would never settle down normally and have a wife and kids like the brother, so he named the kid to give James the closest to a son he could have. He probably figured that he could still give the next kid his own name. Or maybe James Jr. was the second son, and his brother was already named after Dad? ---
**Author:** ![Justin\_Bailey](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/justin_bailey/32/8792_2.png) [@Justin\_Bailey](https://boards.straightdope.com/u/Justin_Bailey)\ **Post date:** [June 15, 2009, 7:37pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/45 "2009-06-15T19:37:18Z")
> [@constanze](#): > > Another possibility: James’ brother asked James to be godson for the kid, so you get James, and because he was the first offspring, got the junior. Maybe the brother realized that with all that romancing around, James would never settle down normally and have a wife and kids like the brother, so he named the kid to give James the closest to a son he could have. He probably figured that he could still give the next kid his own name. If I recall correctly, this was more or less the explanation given in the show. James Jr. was Uncle James’ favorite nephew, and to distinguish between the two, James Jr. was named James Jr. ---
**Author:** ![DocCathode](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doccathode/32/18773_2.png) [@DocCathode](https://boards.straightdope.com/u/DocCathode)\ **Post date:** [June 16, 2009, 12:28am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/46 "2009-06-16T00:28:10Z")
It was my understanding that, despite some claims by Arkham House, nearly all of Lovecraft’s work was now public domain. It was also my understanding that Cthulhu, Nyarlhotep, Great Old Ones, etc were all trademarks of Chaosium and can’t be used without their permission. Is this correct? ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [June 16, 2009, 2:26am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/47 "2009-06-16T02:26:10Z")
> [@DocCathode](#): > > It was my understanding that, despite some claims by Arkham House, nearly all of Lovecraft’s work was now public domain. It was also my understanding that Cthulhu, Nyarlhotep, Great Old Ones, etc were all trademarks of Chaosium and can’t be used without their permission. Is this correct? They don’t seem to be registered in the US. But “CALL OF CTHULHU” is a registered TM for game manuals in the US. That doesn’t mean you can’t use it. Just means that you can’t make game manuals or similar kinds of goods with a “CALL OF CTHULHU” (or something similar) mark attached. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [June 16, 2009, 4:23am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/48 "2009-06-16T04:23:05Z")
> [@Isamu](#): > > They don’t seem to be registered in the US. But “CALL OF CTHULHU” is a registered TM for game manuals in the US. > > That doesn’t mean you can’t use it. Just means that you can’t make game manuals or similar kinds of goods with a “CALL OF CTHULHU” (or something similar) mark attached. That was my understanding- you can’t make “Call of Cthulhu” RPG stuff without permission from Chaoisium, but if you wanted to write another addition to the Cthulhu Mythos then you are free to do so and there’s not a lot anyone can do about it. ---
**Author:** ![Dan\_Norder](https://avatars.discourse-cdn.com/v4/letter/d/4af34b/32.png) [@Dan\_Norder](https://boards.straightdope.com/u/Dan_Norder)\ **Post date:** [June 16, 2009, 11:45pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/49 "2009-06-16T23:45:43Z")
> [@DocCathode](#): > > It was my understanding that, despite some claims by Arkham House, nearly all of Lovecraft’s work was now public domain. Correct. > [@DocCathode](#): > > It was also my understanding that Cthulhu, Nyarlhotep, Great Old Ones, etc were all trademarks of Chaosium and can’t be used without their permission. Is this correct? Incorrect. So rumors that the original Deities and Demigods book for Advanced Dungeons & Dragons had to remove the Cthulhu stuff because it was under copyright/trademark before the next reprinting are false. See also [_Cthulhu Rising_](http://www.boardgamegeek.com/boardgame/37349), a game about Cthulhu without Chaosium’s license or blessing because it’s not needed. ---
**Author:** ![DocCathode](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doccathode/32/18773_2.png) [@DocCathode](https://boards.straightdope.com/u/DocCathode)\ **Post date:** [June 16, 2009, 11:59pm UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/50 "2009-06-16T23:59:04Z")
Why don’t Michael Mignola(Creator of HellBoy and huge Lovecraft fan) and others use the names then? In The Doom That Came To Gotham (Batman meets Cthulhu- much, much better than it sounds) he uses Iogg Sotha instead of Yog Sothoth. In GURPS Horror, it says ‘We dare not speak of Cthulhu and others for fear of the I Shoodn’ta Khopi Rites’. What gives? ---
**Author:** ![Dan\_Norder](https://avatars.discourse-cdn.com/v4/letter/d/4af34b/32.png) [@Dan\_Norder](https://boards.straightdope.com/u/Dan_Norder)\ **Post date:** [June 17, 2009, 12:25am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/51 "2009-06-17T00:25:53Z")
Some people don’t want to use the actual names for whatever reason, and many people don’t (or didn’t at the time they published) understand copyright or trademark laws very well so take precautions that they did not have to. ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [June 17, 2009, 12:45am UTC](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646/52 "2009-06-17T00:45:56Z")
When it comes to comics and games, the publishers may also prefer to feature characters that they can trademark themselves. [Previous page](https://boards.straightdope.com/t/could-you-legally-write-a-novel-about-the-relative-of-a-copyrighted-character/499646.md?page=2)