There are seldom certainties in the application of law, so I am just looking for a general consensus.
Say a company would like to create and offer fan-related items, such as a fictional menu from the equally fictional Monk’s of Seinfeld (the exterior restaurant is real, but not called Monk’s, and the menu would be entirely fictional).
Or perhaps a fake bill-of-lading from Planet Express, of Futurama.
These items would be offered for sale solely as novelty/entertainment to fans of the various shows. No restaurant or delivery businesses would be created.
I don’t think these ideas are any different than the companies offering Festivus poles, Festivus cards, etc these days. Keep in mind this wouldn’t involve copying any visual from any of the properties, or even mentioning those shows; simply using pseudo-trademarks presented within the fiction of those shows (IOW, the Monk’s menu wouldn’t feature an image of the restaurant, or anything actually shown on the show).
Would such a venture be reasonably safe from the legal wrath of those entertainment properties? Or is it a lawsuit waiting to happen?
Before doing this, you’d want to make sure that the names of the fictional entities are not trademarked in their own right. “Planet Express,” for instance, is a trademark. So is “Festivus.”
Gfactor, that thread seems to focus on using a fictional name as a business name in actual commerce, whereas the proposed use is simply using the fictional name on a product. Somewhat of an overlap, I agree, but I don’t want to open a Monk’s Restaurant, only create fictional menus.
In that thread you mentioned:
I think this goes to the heart of why I am thinking it would be acceptable.
Pinkfreud: those aren’t the actual examples that I am considering, but you make a good point. Curiously, Festivus Poles doesn’t seem to be registered by anyone related to Seinfeld. Some of the other Festivus registrations regard wine, and Planet Express seems related to toys. In other words, there may well be trademarks registered for unrelated businesses, and if (in my example) there was really a Planet Express delivery company, it would be ill-advised to confuse the market.
Hmmm…upon further searching, I see that SN 75065729 for Planet Express was registered in 1996 by (drumroll) Matt Groening, but later abandoned. This seems to go against Gfactor’s earlier comment, and common sense, in that Planet Express isn’t real, so how could it be used in commerce? Or perhaps that is why it was abondoned.
I now see that SN 77155643 is still live, and it appears Groening intends/intended to offer Planet Express T-shirts, etc.
For the purposes of my question, though, use an example where no one is offering products featuring the fictional company.
The name of a fictional company, it seems to me, would be covered by the copyright on the body of work as whole, and any profit-making enterprise attempting to make use of it would be liable to the copyright’s owner – it’s hardly fair use, after all.
They might have reached that decision on trademark grounds, but it couldn’t have been based on copyright. Which would make that case relevant to the OP, but not to the tangential trademark question which has come up.
Yes, there’s plenty of companies doing that sort of thing. Under licence, that is. A large proportion of the income for many shows and movies is product tie-ins such as you describe. In some cases they make more from licensing than they do from the actual movie. Have your people contact their people and you can negotiate the rights to make your bills of lading. You will, of course, have to pay them an appropriate fee for the rights. But it won’t be a killer. They want your business to succeed. They want you to sell many many items. The more you sell, the bigger their profits.
If you try marketing your products without obtaining a licence first, then there’ll be trouble.
How would that work, exactly? How do you intend to market your fake bill of lading to Futurama fans, without actually citing Futurama in the advertising?
And would any futurama fans buy a bit of paper that has “planet express” written on it, but not the logo as used in the show, or reference to any events in the show?
Fox sent a bunch of cease-and-desist letters to independent producers of swag featuring the “Blue Sun” imprint from Firefly. Don’t think it ever got to the inside of a courtroom, though. Presumably their argument is founded on similar grounds as discussed above.
In light of the recent actions regarding cease-and-desist letters being issued to hundreds of people claiming copyright violation over A NUMBER, I think it’s safe to say that unless you intend to actually go to bat, nothing is safe.
Just want to point out that they aren’t claiming copyright infringement–they are claiming that the disclosure of the numbers violates the DMCA’s proscription of devices for circumvention of DRM:
Even aside from Gfactor’s point, why wouldn’t a number be copyrightable? Suppose I had on my computer an MPEG of the latest Spider-man movie, or a PDF of the latest bestseller book… Those are copyrightable (and copyrighted), right? If I did have them on my computer (I don’t), I’d probably be guilty of copyright infringement. But they’re also computer files, and all a computer file really is is one big number.
There have been products bearing “logos” of Powdermilk Biscuits, Bertha’s Kitty Boutique, and Bear Whiz Beer, but I always assumed they were done with the permission of the writers. I don’t think that’s quite what the OP had in mind.
Marketing would be slower than normal, I admit. I wasn’t actually planning on producing the items I used as examples, but they are good examples of what I had in mind. But as you note, marketing would be more viral than outright advertising.
To me, that’s part of the charm. Decorating your rumpus room with a street sign that says “Wisteria Lane” without shouting “Desparate Housewives” is part of the fun. People who remember Psycho get the Bates Motel robe joke; people who don’t, don’t.
Another example came to mind, and in my research I see someone is already marketing these, assumedly without license: http://www.cafepress.com/delBocaVista
Now, there really is a “Del Boca Vista” in Michigan, so I wouldn’t actually use it for that reason alone.
Again, these are simply examples of uses - not ones that I would actually create, either because they are already being done (Festivus poles and cards), or because there is an actual business (Del Boca Vista) in existence with the name (creating confusion in the marketplace is a great launching pad to an infringement suit, of course).
