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Subject: Scenarios and movies, trademark etc rss

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Dan Edwards
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Playing Cowboys: The Way of the Gun in conjunction with watching a lot of Westerns has me thinking of scenarios based on scenes in films...and what issues would be involved in posting a scenario to BGG if it came from a film.

No artwork or images involved, just names of films and characters.

For instance, if one was to post a scenario based on the mounted gunfight in "True Grit", could one name characters "Rooster Cogburn" and "Ned Pepper" or would you have to go generic with "Fat Eyepatched Old Marshal" and "Lucky Outlaw with a Messed Up Lower Lip"? Could one use the actors names instead? If I snicker while I write it, is it considered satire? If I change an element, like having the characters ride Mopeds instead of Horses, am I safer?

Could you say, "inspired by a scene from 'Insert Movie Here'"? Could you name the source film at all? Would it be better to use an anagram, like "Grue Trit"?

I would guess a publisher would have to be careful,("The Crazy Bunch") but are gratis user posted scenarios considered fair use?





 
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Mik Svellov
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Avalon Hill's TV Wars certainly did get away with using satire:


Quote:
are gratis user posted scenarios considered fair use?

Don't even have to be free AFAIK.
Wasn't there a guy who a case about a Monopoly expansion some years ago?
 
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Scott
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Practically, I doubt there would be any issue. Copyright/trademark has gotten a little insane though so technically you could be infringing . I'm sure that if you were making a lot of money it would be an issue but I really doubt Time-Warner or whoever would waste any time with something like what you describe. This is a for-profit site though so I suppose someone could argue that these things are for profit if you post them here(not that that is the only criteria for determining fair use/infringement).

If you are directly parodying the work, you would be covered but that's a hard thing to prove. See Jeff Koons or 2LiveCrew in wikipedia.

My advice: If you're really worried, contact the admins and ask them. It's probably their ass that would be on the line anyway. If they aren't concerned you shouldn't be either.

Copyright/trademark/etc. have gotten stupid in this country. I can't believe something like this even has to be a concern but, sadly, that seems to be the way it is now(i.e. the soccer game that shall not be mentioned!).

"Could you imagine a world without lawyers?"...(shudder)



Good luck, cool idea.

(edit for grammar)
 
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Walt
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It's not a matter of fair use because this is trademark not copyright. IANAL, but I have some familiarity with IP issues.

Basically, three kinds of trademarks exist. Registered trademarks have the circle-R and are the strongest protection. Putting TM after the name allows you to assert you are using the name as a trademark. However, implicit trademarks require no notice. Recently a user here complained that he had register a trademark which a company was violating, however he registered a made up word that someone else created, that creator having implicit rights to the trademark. Further, trademark law requires that if you tell someone, "You used my TM, remove it or pay me," you must then sue if they don't comply; if you don't, they have a cause of action against you for abuse of process. So you don't assert a TM without meaning it, and you either comply or call your lawyer if someone threatens you with TM action.

Movie titles are usually trademarked explicitly, one way or the other. Actor's names would have at least an implicit trademark.

The major difference between trademarks and other sorts of IP is that trademarks must be defended to be maintained.

You may certainly say something is inspired by a movie (a statement of fact), but going beyond that is very dangerous. Disney has (in)famously sued preschools for painting Disney trademark characters in their play rooms.

In addition to the game already mentioned, Dream Factory satirizes movie titles and peoples names. They did not use real names. The original, Traumfabrik, did use real names. The change has to be attributed to the more aggressive TM litigation recently.

And, yes, IP often seems silly and usually is. But suppose you're an actor and someone uses your name in a way you don't like? Don't you feel you should have control over your own name?
 
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Scott
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Tall_Walt wrote:
It's not a matter of fair use because this is trademark not copyright. IANAL, but I have some familiarity with IP issues.



Nice post. Could you elaborate a little on how a person makes the trademark/copyright distinction. I thought that using portions of another 's creative work in your own creative work did fall under fair use. Are things like titles/characters trademark and exempt-i.e they don't count as creative works-, whereas something like dialog is copyright and allowed? Does all of this still apply if it's not used for any financial gain.

Is there no fair use equivalent for trademark? What if you want to parody or review a trademark? Do you just have to show the c or TM logo or is it totally off limits?

Sorry about all the question this is just one of those things that are hard to get my mind around.

 
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Walt
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Checkallday wrote:
Nice post. Could you elaborate a little on how a person makes the trademark/copyright distinction. I thought that using portions of another 's creative work in your own creative work did fall under fair use. Are things like titles/characters trademark and exempt-i.e they don't count as creative works-, whereas something like dialog is copyright and allowed? Does all of this still apply if it's not used for any financial gain.

Your message is copyrighted, and my reproduction of a small part of it is fair use. Quoting this much is not--you've implied permission by posting here (and the terms of service may grant me rights(, but I couldn't republish it without permission. I could use part for critical or formal educational purposes (formal meaning I can't copy a textbook for my own "education"). Using something in your own creative work is not an exemption--myth. The classic example is if you make a montage of other people's photos, you don't have a right to reproduce it without the other photographers' permissions. For more information see: http://www.copyright.gov/circs/circ1.html

Trademark is, oddly enough, a mark used in trade like Kleenex. Or like the three notes of the NBC chimes. You can have a character in a novel use Kleenex (but if they use kleenex, you might get a letter from the trademark-holder's lawyer), but you can't use it as an important element unless it's satire, criticism, or some other comment on the actual object of the trademark. You can't market Super-Kleenex, and using the Kleenex trademark as a major element in a game would need their permission since it could dilute their brand--or their ability to make a game using their own trademark. See: http://www.uspto.gov/main/trademarks.htm

Some exceptions exist. Protections are very strong for unique trademarks like Kleenex. But Ford Motor Company can't stop Harrison Ford from using his name; however, if you, too, were named Harrison Ford, he (HF) could stop you from using your own name as an actor. Harrison Ford could make cars, but he couldn't call them Fords. The basic test is whether any confusion could exist about who was making or endorsing the product. Paramount can call the Star Trek ship Enterprise, but they can't stop the Navy from using Enterprise as a name of their ship--they tried! But Tolkien invented the word hobbit, and back in the day, TSR (who then owned Dungeons and Dragons) tried to trademark hobbit--they lost because Tolkien invented the word.

Checkallday wrote:
Is there no fair use equivalent for trademark? What if you want to parody or review a trademark? Do you just have to show the c or TM logo or is it totally off limits?

You can definitely review it. I believe you could use it in a parody, but you couldn't make something that might be confused with the real product. You couldn't, for example, make parody Kleenex that come with a big yellow stain in the middle of every sheet--people might think Kleenex was marketing the parody product.

The biggest rule, as with all IP issues, is you don't tick off a company that has more money than you do.
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