I'm not sure if anyone's asked this, but would it be illegal for me to post a build based on the intellectual property of another (say, Artemis Entreri from R.A. Salvatore, or God forbid, even Miko Miyazaki from Order of the Stick)? I know that on NWN Vault there are more versions of Drizzt then grains of meteorological dust on the earth, but that doesn't necessarily make it legal.
Any ideas?
BTW, congrats to Finneous, Cinnabar and Grimnir on their recent promotions!
Edited By Big Meph on 06/04/06 15:21
I don't know if it's legal or not - probably is - but even if it's not, no one will care if you post a Drizzt build. It's not like they don't have better things to do than search the BioBoards for Drizzt copies _________________ "... C'est un pays plus nu que la terre polaire — Ni bêtes, ni ruisseaux, ni verdure, ni bois!
Or il n'est pas d'horreur au monde qui surpasse La froide cruauté de ce soleil de glace Et cette immense nuit semblable au vieux Chaos; ..."
I don't know if it's legal or not - probably is - but even if it's not, no one will care if you post a Drizzt build. It's not like they don't have better things to do than search the BioBoards for Drizzt copies
Yeah, somewhere deep down, I had a gut feeling that Robert has better things to do with his free time then scour the internet for people to sue.
The reason I asked is that someone posted a build for Mario on NWN Vault, and ended up being served with a "Cease and Desist" notice by Nintendo.
If there are no profits being made, or no money exchanged, or any goods and services, but merely a translation of a fictional character by using letters and numbers and codes, I don't see a problem. _________________ Got Hommlet? World of Greyhawk Action Server (with 1/2 price ales on Mondays!)
Ariel, Ookla, RIDE!
Honestly, companies are going a little overboard on the whole trademark/copyright suit threats because they know that most people don't have the resources to fight them in court.
If America had the "English system" for filing suit - where the loser pays the court costs - there would be a lot less legal bullying by corporations and a lot fewer frivolous suits, methinks.
Anyway, from my understanding of the law, assuming you don't actually copy the character wholesale from a WotC sourcebook but rather create a build that was inspired by the character, you should be in the clear.
Drizzt is, most probably, WotC's intellectual property and not Robert Salvatore's - if his publishing contract for the Icewind Dale trilogy didn't make all the characters therein TSR's property as one of its clauses, I'd be very, very surprised. And then WotC got most, if not all, of TSR's IP rights. _________________ Experience is the mother of good judgement; bad judgement is the father of experience.
I haven't perused the copyright act since the last amendment. Prior to that you were fine as long as the work was not published (something like 20 copies). With the internet, I'm not sure how posted works are considered in terms of publishing. As long as it is non-profit and not defamatory to the character (e.g. with Drizzt, don't make him a half-orc dual wielding butter-knives), you should be okay. _________________ Two wrongs don't make a right but three lefts do.
I haven't perused the copyright act since the last amendment. Prior to that you were fine as long as the work was not published (something like 20 copies). With the internet, I'm not sure how posted works are considered in terms of publishing. As long as it is non-profit and not defamatory to the character (e.g. with Drizzt, don't make him a half-orc dual wielding butter-knives), you should be okay.
_________________ "... C'est un pays plus nu que la terre polaire — Ni bêtes, ni ruisseaux, ni verdure, ni bois!
Or il n'est pas d'horreur au monde qui surpasse La froide cruauté de ce soleil de glace Et cette immense nuit semblable au vieux Chaos; ..."
Copyright/Trademark Tutorial (Basics) This post is for general information only. It does not constitute a legal opinion, or render any legal advice; nor may it be relied upon by anyone for any purpose whatsoever.
Saw this post and thought I'd help, as best I can; Copyright law of course varies, generally from nation to nation, but is increasingly being harmonized at the international (WIPO/TRIPS) level, in part, as a response to the Internet. Is their copyright in a fictional character? That depends, as Xylo points out. Some places say yes regardless of whether it's published (due to a duty of fixation), others say no, unless published; in the US, publishing means e-copies, or even if reduced to writing/board etc. so that it's "perceptible" (ie., in writing, recorded on a disc, etc.), even if not sold/distributed as a general rule. There's an exception with respect to diaries, which are personal and private although reduced generally to writing, and issues such as these continue to go to the courts.
Unfortunately, there is in the US no exception for "personal use, not for profit" - this differs from EU law (again, depending on the jurisdiction, as that aint' the law of Britain or other places either). In the US, there is a doctrine whichh allows people to use part of a work, a fair use. Personal use of a work by some one (not the copyright owner) is part of the test, but there are two other parts to the test. In other words, even if use is not for profit, personal only, it can still be found to be a copyright infringement (thus, not a fair use, despite no profit or gain). The test for fair use is very complicated, depends on the facts of each particular case (and also on a jury's determination of those facts). Copyrights last a very long time (life of owner + 70 years most places), and there's no longer any need for a copyright owner to register anything anymore in most places (including the US and Canada) under international conventions; rather, as a general a copyriht affixes to protect the work the instant it is reduced to a writing (or otherwise perceivable; in the US, some courts have held that even when a work is 'copied' into Ram, or caching a web page, it's a copy of the original even although such 'copy' doesn't last a long time. Although this was recently changed by the DMCA for Internet service providers to be able to provide Internet service, other nations are all over the place on this . . . again, very complicated issue. What concerns me more is the Trade mark issue.
In the US, Mattel is trademarking Barbie; the Canadian Supreme Court agrees with much of this view, having extended protection to Lego as a trademark. Trademarks essentially last for as long as the company who owns them continues to "trade" in the materials to which they have affixed "the mark" - which could in theory mean forever. Again, a complicated issue, but one that's arising more and more as companies seek to protect their products, to the point of what many legal scholars and others are callling nothing short of insanity.
Chances of getting sued? Totally different issue, and has nothing to do with the law. One of the most important things to know is that companies, nor anyone esle, can copyright facts - if, for instance, you base a character on a historical character, an idea you get say from a book about the character, the author who wrote about that particular character can no more come after you for building your own version of said character since said author may own his/her words/expression, but frankly, so do you in respect of your words/expression of that exact same subject matter. Neither of you own facts (again, not a fictional character, but a real historical person long since dead).
Also, there is in the US a parody exception; meaning, you can make fun of something, so long as not malicious, or harmful or what have you (i.e., comedy shows poking fun of the president, newspaper strips poking fun at the local company, etc.); unfortunately, there is no parody exception under Canadian Law to copyright or trademark law, nor is there a "free speech" right to use another's expression or trade mark.
One thing that recently got an author in serious hot water in the US (a children's book) was that she took a few paragraphs, which the original author of a book said was the whole jist of her book, and then made her own version - a best seller. The second author gave no credit or anything else to the original author, and in fact initially denied ever having read the first author's work (it was later found out that she did in fact read, and thus copied, even if unconsciously, pulled out of memory so to speak, and thus wrong; in her case, she was lucky, as the first author didn't sue on getting a public apology and all the offending books pulled from the shelves.
Anyway, as stated, the law is very complex and ever changing in this area, and the Internet/E-Commerce only makes it far worse and that much more complicated. Years ago, record companies didn't bother to sue individuals who "pirated" a song for personal use; now they do.
Bottom line: just be careful. I know a lot of people think that it's okay to use/copy something so long as it's for personal, non-commercial use, but this is not in fact the law on most things copyright. Companies are aware today that their most important assets are often IP, and are enforcing their IP rights very, very vigorously.
I put this out not to scare anyone, and never enjoy pouring cold water on people, never ever ever. On the other hand, I've some good news, again, depending on how far one takes it: in the US, a name alone, i.e., the title of a work, the title alone, cannot be copyrighted. In other words, disney does not own the name "mickey" or "mouse", but a graphic representation (copyright) of the thing it calls mickey mouse.
Trademarks are a bit different, as these things are names and are registered. This is different also than in the EU, where titles can (depending on nation) be copyright protected; in Canada, titles can be copyright protected too, but only if they are themselves original, so as to be deserving of protection. Most titles/names do not meet this "originality" test - again, think through it; and I trust that this is good to know
Deb Tyr
Edited By TyrTemplar on 06/27/06 05:11
A bit more succinctly
Generally, naming a character after 1) someone still living: not good (could give rise to publicity and/or libel suit)
2) fictitious character: be careful; a name/title alone is, as a general rule not copyrightable, as stated above; however, the more you take, the more you begin to impinge on the author's rights, which include the right to prevent anyone else from "copying" (once again, and remember, copyright protects against taking a work; in the case of a mere name, you're not taking computer code, someone else's words, a graphic representation or the like - for copyright to vest in title, if in a jurisdiction where title is permitted at all, it must be original in and of itself.
Analogy: Celine Dion sings, "my heart will go on" - a title of a song. This does not prevent me from recording an entirely different song, with different notes & lyrics, of the same title. So long as I don't copy her song, I can call my song pretty much anything I want to, including: "my heart will go on" since there's nothing particularly original about the title as such, and it's not a trademark.
Copyright is not to be confused with trademark, which is an entirely separate thing altogether (in which case a single word, i.e., Xerox as applied to copy machines, can be protected once put in trade i.e., affixed to a good or service in the stream of commerce. as in, the copy machine. While trade marks have a right per se not to be disparaged (as it affects their value in terms of trade), fictitious characters generally have no "reputation" in and of themselves; fictitious characters are not real, live person and are not the same as a trademark (once again, unless registered as such and/or affixed to actual goods sold on the market). this is also the reason I understand why Mattel wants/did trademark its barbie doll (thought the song, "i'm a barbie girl, in a barbie world" was disparaging to its product, and sought to protect against such disparagement, via trademark, to ensure sales continued). Again, copyright is not the same as a trademark.
3) Real Person long since dead: no reputation to protect, unless it's a famous person still trading goods or something as in the case, i.e., of Elvis. No problem though with e.g. Napoleon, etc.
4) Finally, IP laws differ as to the jurisdiction in which you live; while nations are harmonizing, they aren't yet the same. US laws as a general rule do not apply to Germany, anymore than German law applies to Canada. Again, the Internet raises very complicated issues in this regard, as to where for instance any alleged problem occured and, regardless, who's law should apply. However, these issues are far beyond any general discussion, and are very complicated.
Hope this helps ~ Deb Tyr
This post is for informational purposes and does not constitute a legal opinion, or any legal advice whatsoever. No one may rely on this for any purpose whatsoever, and for greater certainty without detracting from the generality of the above, this post does not give rise to any solicitor-client or any other relationship.
Edited By TyrTemplar on 06/27/06 07:28
That was so long! Thanks Deb for the seemingly endless amount of effort you put into answering this query.
Please tell me that was a copy/paste job, or you must have very sore fingers.
She always posts that long, still, this one was good methinks.
I've never been sure about, if I break the copyright of, let's say, a company in USA, but I'm outside of USA, which laws apply, the ones from where the copyright was made or the one of my country?
Hmmmm, say, I'm taking a ficticious name for a build (which I do: Amelissan Blackheart), and try to recreate it similarly (as would be like in the case of Drizz't), does it enters too much into the "copying" as far as to get in troubles? (BTW my request on it seems ignored...)
She always posts that long, still, this one was good methinks.
"She always posts that long, but, contrary to usual, this time it was good." _________________ "We keep our Feast of Feasts, sure of our bourne, Our aims self-same: The Guest of Guests, friend Zarathustra, came! The world now laughs, the grisly veil was torn, And Light and Dark were one that wedding-morn."
She always posts that long, still, this one was good methinks.
I've never been sure about, if I break the copyright of, let's say, a company in USA, but I'm outside of USA, which laws apply, the ones from where the copyright was made or the one of my country?
Hmmmm, say, I'm taking a ficticious name for a build (which I do: Amelissan Blackheart), and try to recreate it similarly (as would be like in the case of Drizz't), does it enters too much into the "copying" as far as to get in troubles? (BTW my request on it seems ignored...)
The company involved would probably file against you in a jurisdiction where the law favored their desired results, as long as they had a reasonable excuse to do so.
For example if a company had an office in Germany and its HQ in the US, and someone in Germany copied its mascot or something, it may be able to file suit in either country. _________________ Experience is the mother of good judgement; bad judgement is the father of experience.
Hey, guys: you know you people are "evil" don't ya? OK, jurisdiction is it? I was trying to stay away from that, as it is very complex and ever-changing, but since everyone seems to want to know more about it (again, complex, complex), but I'll add the following:
essentially, it's like this: the nation (state, province) or "place" where the wrong, or a substantial part of the wrong, occurred, is the place that has jusrisdiction over the case. Generally, also, under international law principles, the courts of the place wherever the defendant is habitually resident (i.e, lives) has, for all purposes, jurisdiction over said defendant. Where the plaintiff (ie., company that was wronged) resides is not always but in Cyberspace tends to be irrelevant. A foreign company, allegedly wronged in cyberspace, can sue the defendant in the courts of the place where said defendant lives; the plaintiff company need not have an office, or any presence over there, to do so. That's basic international law principles.
the converse, as to whether a foreign company can haul you into a foreign court (ie., a US company suing say a German for doing something on the net, which US company wants to sue for in the US), is the complex question, and very much depends on a whole host of questions, facts, the type of wrong alleged, connections between places (if any), etc. In other words, its totally fact driven and for the most part was the domain of theorists, as folks didn't travel all that often in past; but today it's a hot bed and very real question, as a result of the advent of the Internet.
The question being: whether a foreign company can sue you in their country (thus haul you into a foreign court) for something you did elsewhere - ie., from your home. The Internet makes this possibility possible, and that's why as stated above, it's very very complex.
An example: a Canadian business person posted a statement about a US company (texas) on the internet, to a web-blog, from his home (british columbia). The texas company thought the canadian's statement was defamatory to it, and sued the canadian in texas (it's home jurisdiction). the canadian didn't show up, and the court of texas found in favor of the Texas company, and awarded it a lot of money. It agreed with the company that the defendant (canadian) statement was defamatory, and also ruled that the canadian, by posting on the net to a website available in texas, had purposely sent his statement into texas, thus making it fair to be sued there on it.
With texas judgment in hand, the texas company went to the b.c. courts to enforce it (ie., get paid), but the b.c. court refused to exercise jurisdiction in favor of the texas company, since the b.c. court found that the texas court had no jurisdiction over the canadian to issue judgment in the first place. In doing so, the court of B.C. held that, by merely posting a comment to cyberspace, from his home computer in B.C., the canadian, who had no other ties to texas whatsoever, nothing at all other the post complained of, didn't do anything that in its view would make Texas a particularly proper place for the texan company to haul said B.C. guy into.
The b.c. court reasoned that, if it were to do otherwise, anyone could be hauled into any court anywhere in the world, merely because someone who lived over there happened to go to the Internet; this, in turn, would make everybody who uses the Net amenble to suit absolutely everywhere, despite having no other connectios whatsoever to any of these other places, which would not only chill speech miserably but also render the internet, as a tool, completely useless (as in, no one would use it for fear of foreign suits).
The above is good reasoning from a common sense "human in the street" view, but, once again, different courts in different nations (and/or states)are all over the map on these issues; an international law body is looking into these things, as they affect sales of goods and so forth, but as yet no clear international law on these other (ie., speech or other such issues), and whether or not it occurs in future remains to be determined.
As a general guide, though: foreigners cannot be hauled into a foreign court unless they do something more than merely post to the web; they must have intent, something that can reasonably show that, in posting, they meant or purposely wanted their post to enter into the foreign place (and not just the Internet in general).
This can be found if said foreigner has other connections with the place, ie., business ties, does business, sends out catalogues, opens a web-business and "advertises" and/or has customers in the place. In other words, something more than a mere personal post. There are always exceptions, of course, and courts are free to find otherwise - can always find in favor of the one they find more sympathetic (which may in some cases be the company); that having been said, your home courts are free to ignore it, too. As a general rule though, you can always be sued in the courts of your home nation. Whether the suit has any merit is a totally separate issue
There's a lot more to it of course, but these are the basics, and form part of the so-called cannons of international law (which are binding in ie., France, but not in the U.S. (or commonwealth (Britain, Canada, Australia, etc.), although most nations do try and comply with them, or at least say all of their courts, and including those in the US.
Deb Tyr
ps. and ya know, I tend to get paid for this stuff
seriously everyone, just be careful, and all should be fine (see above guide). Happy to help.
And I know, this whole IP thing can get very, very scarry at times: but fact is, companies don't own the dictionary, nor can they, nor does the US own the Internet, no matter how hard they may try - then, not all of 'em are bad of course - afterall, we've got Bioware/NWN, and the ever-increasing free source movement, too: there are other business plans, as these movements show, and the big guys, like IBM, are paying close attention and learning, too (afterall, basic business: suing consumers generally isnt' a good way to increase popularity among consumers to increase sales, ya know
This post contains general information only, and does not constitute a legal opinion, or render any legal advice. It does not give rise to a solicitor-client or any relationship whatsoever, and may not relied on for any purpose whatsoever. It is for general information only.
Edited By TyrTemplar on 06/27/06 22:10
Here's a nice guide, as to the US fair use doctrine, which is published by the university:
Oh, and Thax, choice of law? EGADS -- that would take up, well . . . . (yeah, complicated, isn't it? Used to be that the law of the place which has jurisdiction over the case was the one to use, but the Net (as the above discussion shows) makes it possible for a different result, since "choice of forum" (as in, where the case should be heard as in which court will hear it) is not the same as "choice of law" (as in, whose law applies without regard per se to where the case is actually heard, although it's a factor). Again, it's all fact-dependent. General rule: IP rights are dependent on the nation that recognizes it, where the "owner" wants to assert such rights, thus being peculiar to each nation; but this is a general rule, and Berne Convention changes a lot of this, and thus even more complicated. . . But here's an interesting link, and hope all of this helps.
Tyr
This post is for general information purposes only, and does not constitute a legal opinion or render any legal advice. It may not be relied on for any purpose, and gives rise to no relationship whatsoever.
Edited By TyrTemplar on 06/28/06 00:27
Just some more food for thought, now that we've had a chance to peruse fair use
Fair Use
As stated, no license/permission required (generally) to merely use a title of a work, since titles (generally) are not copyright protected. Trademarks and Copyrights are not the same, being separate and apart from each other (with different bodies of law, rights, and rules etc. being applicable to each). Publicity Rights are also a separate issue, as are issues of privacy, defamation and libel.
Back to copyright: if the work in question is copyrighted (ie., a fictitious character), you do not generally need a license/permission to use an insignificant part of the work, not its “heart,” providing other factors are met, as this is in the US generally considered to be a permissible fair use. Unfortunately, the issue as to whether any particular use is fair or not is unclear, and posting for public use is also generally a problem, and can give rise also to thorny issues of jurisdiction and choice of law problems (see, above).
In respect of fair use, notwithstanding these other problems, the determination will be made by a court based on the facts of each case, on a case-by-case basis, on a consideration of the following four factors:
1) Purpose and character of use. A finding of fair use is more likely where such use is for noncommercial purposes, such as a book review.
2) Nature of the copyrighted work. A finding of fair use is more likely where the copyrighted work in question that is used is a factual work, as opposed to a creative one.
3) Amount and substantiality of the amount of a work used. A finding of fair use is more likely where what is used is only a tiny amount of the work. However, if the tiny amount used is an important part of the work,(i.e., the “heart” or “gist” of the work), then a finding of fair use is not likely.
4) Effect on the potential market/value for the protected work. A finding of fair use is more likely where the use made is transformative, and does threaten sales of the work (i.e., the new work is not a substitute for the copyrighted work).
Generally, use of a small amount of a work, not its heart, for purposes of research, teaching, scholarship, criticism, comment and news reporting are the traditional purposes of "fair use".
This being the case, and this guild serving essentially as an educational forum in RPG/gaming, to learn about character builds, with criticism and comment being the entire purpose of the guild, an interesting question/issue arises:
If we were, hypothetically speaking, to put up a character in the world of gaming, using not a substantial portion but only the name and maybe some stats, for the purpose of criticizing/reviewing and commenting said character, which is an essential part of the guild’s educational purpose as it relates to gaming and character building, ….
If we forget gaming for one second and look at what occurs in the so-called more traditional fair uses, ie., reviews, such as a NY Times literary review of a best selling book, or Siskel & Ebert’s Review of the movies, one may be inclined to see what the guild does in a different light, as one of education, criticism and review, for which an argument can be made, provided once again only small portions not the heart are used, that it’s a fair use, providing the other factors are met, and proper credit(s) are given the copyright owner.
Once again, there are no bright line rules in respect of fair use, making it a risky doctrine. But it is, and has since the earliest times been a right of the people, granted by Congress and the Senate, to make “fair use” of otherwise copyright protected materials, and this power is granted under the rightful authority of the US Constitution.
Food for thought - once again, this is just a hypothetical question, in which a most interesting issue is definitely raised; comments anyone?
(once again though, the fact its posted on the web makes this problematic, although an interesting question, best to stick to the guide as once again fair use is risky; wish it were otherwise, but unfortunately that's what we've got). still, an interesting thought
Edited By TyrTemplar on 06/28/06 02:08
I always thought you were a politician, the way you just never stop... But lawyer is right-on too. _________________ Dragonlance ROH is back, better than before! and I spend a little time here WoG
Actually, a professor, IP and legal history stuff (just started lecturing this year in fact - and gets paid to write about history but some days, I must say, with all that's going on in the crazy world of IP right now, sure feels like politics!) & totally happy to help with general info and stuff (only fair, you folks taught me the mysteries of the AB cap, among other great stuff
& Meph, you're from Oz? for you I've found this, which is a basic tutorial on Au Copyright, by the Copyright Council
This post is for general information purposes only, and does not constitute a legal opinion or render any legal advice. It may not be relied on for any purpose, and gives rise to no relationship whatsoever.
I think I should put THAT on my sig!!!
Young prog eh!! I must say that you are one of the most amazing posters to EVER have posted on bioware! You have sooooooooooooooooo oooooooooooooooooooooooooooo ooooooooooooooooo ooooooooooooooooooooooooooooo ooooooooooooooooooooo much to share, such passion! and only recently, some pretty good builds too (i just like the icon so I have to say some stuff to put it in).
Thank you for all that info! The cheque is in the mail. _________________
This post is for general information purposes only, and does not constitute a legal opinion or render any legal advice. It may not be relied on for any purpose, and gives rise to
Edited By avado on 06/28/06 03:38
Thanks, Av! Very kind of you to say, and that sig, it looks good on ya (note: license for your use of it granted, in perpetuity Thanks also for your compliment re: my builds; appreciate that, then, that's because of all of you (and please know that I really appreciate yours and everyone else's here, too - yep, an educational forum on the "ins" and "outs" of good character building - I keeps on learning so much from all of you, so very generous with your thoughts and ideas, and it's all good!
In respect of the general tutorials, and links to more IP info, I really hope it helps everyone work these issues through. Once again, just be careful, and shouldn't be any issues.
And no cheque required - I'm just a poor knight follower of Tyr afterall, and thus aim to serve
~ Deb Tyr
(once again, thanks Av - so very kind of you)
Edited By TyrTemplar on 06/28/06 04:52
Oh, and for our EU friends, I'll post a link for you guys and gals, too; there's a digital project underway, looking into IP/copyright, and part of it will include a chart overview of EU law, as a comparison to US law, on fair use and other such issues; it is scheduled to be up in a couple of months (out of Oxford as currently scheduled), and it's fully intended for the public, too.
In the meantime, might check out the Zwolle Group, out of Sweden I believe, and they've some good info up if you're interested. Their work, while focussed more on academic scholarship (teaching & research) and somewhat dated is, as I recall, a good place to get an overview nonethelses.
Another good place to look is the WIPO site itself - it has a good site up, with a basic overview of almost every nation's copyright and IP laws; however, what is particularly good is that they also have a link to a general overview of the law in this area, which is easy to understand & it's intented for the public's use.
But, really, there's no need to get "crazy" or "worried" about all of this stuff; really. It can totally drive you nuts, and stifle your creativity. Once again, just be careful, and don't forget to have fun. Afterall, there is a public domain, contrary to what some company's say, and even though some try, as an example, to pull Shakespeare's stuff away from the public by wrapping it up in some new media project of their own, which they simply cannot do.
Remember: the public domain, it exists, and it's huge, and it's there for the use and benefit of absolutely everyone (including, once again, everything that is not protectable, as stated above). So, have fun!
Thanks Deb for the seemingly endless amount of effort you put into answering this query. 
(i just like the