THE Group for Authors! discussion

I'd check with the company that makes the game. Those folks have deep pockets with many lawyers in them.

How common a name is it? Is it copyrighted?

Nick wrote: "Not common at all. A basic Google search has just the game come up. "Jajara" is the name, and I have not found anything that suggests it is copyrighted."

I'm not the best person to ask about legal, and I don't know the game. But I do know Star Wars, and to my ear and reference, Jar Jar Binks comes to mind. Most fans did not love the character of Jar Jar and he was comic. I wouldn't go there... What could be fun and safe is a "secret" reference to the video character you are trying to allude to. What was it about that character? If for example it was green and thorny...you might play with that and call your character Thorngreen... that was just on the fly. I'm sure you can do better than that.

Nick wrote: "Not common at all. A basic Google search has just the game come up. "Jajara" is the name, and I have not found anything that suggests it is copyrighted."

I don't know where you are located, but it doesn't come up on a search of the USA copyright database, so that is a good sign.

When I Google it, I find a number of cases where it is a person's surname, so it is *not* unique to the game. That is also good.

As long as it is not the same character in your book as it is in the game (ie use just the name as homage, not the whole character) you should be okay.

This is *not* legal advice. If you needed that, you would have asked a lawyer, not a group of writers, right?

They might not hold the rights to the name, but they would hold the rights to the character and if (as it sounds) yours is going to be similar to that in the video game, you could have a problem.

yes

I'm afraid that a quick google of your name plus Jajara could bring their lawyers to this page where you say that it's your intention to copy the name.

I am no lawyer, but this seems to me to be a lose-lose. If "Jajara" means something to a significant number of your readers then there is a chance that the owners of the name might take legal action against you. If the name doesn't mean anything to your readers, then there's no reason to take the risk. No-one will notice.

Frankly, I'd change the name. As writers we sometimes have to take hard-headed business decisions, which means that we don't always get what we want. That's when we need a thick skin and the ability to shrug it off.

I know it's easy to get attached to a particular idea. I really want the hero of my next book to be a wizard called Larry Potter, but somehow I know I can't afford good enough lawyers to win that one.

My advice would be to change the name to something that you invented. You will know that the inspiration was Jajara. Your astute readers might spot the similarity. But you need clear water between your writing and something that might be copyright.

Will wrote: "I'm afraid that a quick google of your name plus Jajara could bring their lawyers to this page where you say that it's your intention to copy the name.

I am no lawyer, but this seems to me to be a..."

Excellent advice, Will.

Just my USD .02.

Eric

I'm all for creativity. Make up your own name.

I've encountered this difficulty myself and consulted an intellectual property attorney about it. All characters in a "work" are copyrighted as property of the author unless they are historical figures or other "real" people.

So you can't use them without permission unless you're writing a parody or some other use that US law allows. Easiest thing is to write the company and ask for permission; they might surprise you and allow it. In any case, you have nothing to lose by asking.
Otherwise, change the name.

Reading the OP's initial post... I retained the part about naming a 'dragon' after a 'boss' without cluing into the fact that they would both be dragons with similar attributes.

Nah. I wouldn't do that.

Emma wrote: "I'd check with the company that makes the game. Those folks have deep pockets with many lawyers in them."

LOL.

I'll suggest two things:

1) Name the dragon as you have planned on the premise of a) paying homage to the game and b) your verso (copyright) page should have a disclaimer with the word "coincidental" somewhere within it.

2) And if you're still in doubt, get tricky with it and describe the dragon as "Jajara-like"--since it is a pivotal moment. :)

Good luck.

Kelly wrote: "I'll suggest two things:

1) Name the dragon as you have planned on the premise of a) paying homage to the game and b) your verso (copyright) page should have a disclaimer with the word "coincident..."

It's too late for a coincidental disclaimer to work. He has already discussed his intent here. Homage doesn't pay the bills. The originators may be willing to give consent without getting paid for it, but they have no incentive to do so. Without the consent of the game originators, he is at risk. Maybe he won't get caught. Is the risk worth it for a name?

I would go for an 'easter egg' type homage to the character's name. Something that a fan of the game will get, but others won't. Most gamers would also appreciate the easter egg as well. I was reading a book the other day with lots of subtle reference to Douglas Adam's Hitchhikers series - the sort of thing that fanboys like me will understand, but mean nothing to anyone else.

I'm just going to water my bowl of petunias :-)

Faith wrote: "Kelly wrote: "I'll suggest two things:

1) Name the dragon as you have planned on the premise of a) paying homage to the game and b) your verso (copyright) page should have a disclaimer with the wo..."

If the disclaimer is out of the question then Nick can tackle the dilemma head-on and (do a little research) and give credit to actual game developer\creator of the name (while mentioning the gaming company\distributor)--on the copyright page.

(i.e. "The name 'Jajara' created by [game creator's name] for [video game] distributed by [video game company], [year game was released]; and is used to pay homage to the game.")

Giving credit where credit is due generally avoids problems, too, and as formatted, it is unknown to whom or what the name is being applied, which would make a reader curious, I would think.

Also, Nick, you may want find authors of fan fiction, to see how they deal with it. As popular as I understand that genre to be, I'm pretty sure there's a way to handle it without worrying if you're going to step on the toes of Goliath. Or go with Luke's suggestion.

Respectfully, I doubt fan fiction has anything to do with this issue. They don't "get around" anything. They're plainly and simply violating the copyrights of Star Trek, Star Wars, Rowling, etc., etc., when they write stories and post them. I suspect the owners just ignore the stories because they're not posted for profit.

But I equally suspect that Rowling's lawyers would step in big time to squash anyone who used any of her character's names...particularly one that is going to be described in a way pretty similar to her character even if not identical...used in a book that's going to be sold.

This thread seems to have generated a bunch of comments suggesting ways to "get around" the issue of deliberately using someone else's character and creation for your own financial benefit.

I'm back to Will's idea above: either ask permission of the copyright owner, or just be creative and come up with a character name and dragon description that's your own.

Eric

Eric wrote: "Respectfully, I doubt fan fiction has anything to do with this issue. They don't "get around" anything. They're plainly and simply violating the copyrights of Star Trek, Star Wars, Rowling, etc., e..."

I understood the matter to be with using the name of a copyrighted character, not use the copyrighted character in whole, to which I edited my previous response.

I guess Nick will probably have to really research the name, as I am inclined to think a name is not exclusive, as it is plausible that two different people can create the same name. On the offhand that it isn't, giving credit to the originator meets the purpose of paying homage and protecting himself.

Eric wrote: "Respectfully, I doubt fan fiction has anything to do with this issue. They don't "get around" anything. They're plainly and simply violating the copyrights of Star Trek, Star Wars, Rowling, etc., e..."

I'd agree with this take. Nick might take the risk and end up blacklisted or far worse, which would create permanent damage to his reputation. Is it worth it? Not in my book. Definitely ask for permission, and if refused, come up with an original name of your own.

BTW, Eric: cool avatar!

No.

Cynthia wrote: "No."

Um...just out of curiosity, Cynthia, what are you "no-ing"?

Eric-the-always-curious

I'd stay clear. Games people can be very protective, and as others have said, if your character bears any resemblance they may take offence, no matter how good your intention. Sorry.

Looks like you're making the right decision to not use it.
xx

Eric wrote: "Cynthia wrote: "No."

Um...just out of curiosity, Cynthia, what are you "no-ing"?

Eric-the-always-curious"

Sorry, was working from my iPad and hit the button to soon.

No, you do not have to worry about using the name. Use it. Finish it. If it becomes an issue when you send out, change it.

Cynthia wrote: "...If it becomes an issue when you send out, change it. ..."

"Send it out" to the game's legal team copyright/trademark holders for permission/approval I presume.

Not sure I can express how many readers feel about authors who do not publish/sell them the final book and instead feel it's okay to keep changing after published ( at least not without violating goodreads policies where staff would delete the comment). Maybe the phrase "consumer boycott" ...? Definitely it's one issue -- not considering a published work to be a publshed work -- reflecting badly on the reputation of indie authors for many readers.

Published is published.

Even if not a problem for your customers, potentia customers, and retailers (including Amazon who could incidentally consider publishing a draft -- particularly a draft with known potential legal issues like copyright or trademark or licensing infringements as some customers orvthe game's lawyers might infirm then -- grounds for removing your book from sale) , I'd get legal advice n that one.

Not quite sure (because not a lawyer) the intellectual property laws consider willingness to change it in future sales the same as no theft/infringement of trademarks/copyrights occurred. I'm fairly certain to a lawyer that a published work is a published work.

Why bother risking something questionable? If questioning at all, why not question the license holders and respect their answer?

I suspect that if someone publishes a book which contains known/probable/potential violations of someone else's intellectual property rights, the person who does so isn't going to get off the hook by saying, "Well, of course, if I get caught violating your copyright, I'll be most happy to change things, but if you don't catch me, that's even better."

The bottom line is: why take the risk? No character name (or whatever other thing might be at issue) is worth exposing yourself to either litigation, or publicity which will tarnish your reputation, or both.

Just my USD .02. (Again)

Eric-who-spends-his-pennies-freely

And it seriously might not be anything to question -- sending an explanation and an excerpt of how it would be used to the game might get an "okay if that's all it is," enthusiasm at the image/branding or even permission partly because at least you asked.

A little trademark or copyright symbol or footnote (one little asterisk leading to a footnote saying "licensed to ... " or "licensed trademark of...") or other accreditation might be asked or advised by lawyers; common practice when referencing or quoting from published books is to use footnotes or bibliography section -- but not sure how that applies to games.

If you have to ask, it means there's a possibility it's wrong.

Generally, if you are self-publishing and the issue does come to the notice of creators, the most they will do is send you a cease and desist letter. I doubt it will get enough sales for the game creators to be concerned. Plus, last I checked, you can't copyright a name.

If you are so worried about it, write the first draft with the name if you need it to fire your imagination and then change it before you self-publish.

When you publish traditionally, they will point out any issues like this. That's what agents are for.

The important thing is that you finish the story. Worrying about the rights to a name is putting the cart before the horse.

I have a post about this on my blog if you would like to read more.

Geeze, what do you all think is going to happen with your self-published books?

D.A. (Debbie) wrote: "Cynthia wrote: "...If it becomes an issue when you send out, change it. ..."

"Send it out" to the game's legal team copyright/trademark holders for permission/approval I presume.

Not sure I can e..."

Yes, published is published. The the work goes through several drafts and a vetting process before it is published. This is what I am referring to. Write the first draft for yourself and if you are concerned about it, change it

Indie authors who publish their first or second drafts are the reason many readers, me included, will only read books from publishers who vet their authors.

Cynthia wrote: "Generally, if you are self-publishing and the issue does come to the notice of creators, the most they will do is send you a cease and desist letter. I doubt it will get enough sales for the game c..."

I wouldn't let it hold up your creative process, either. Put in whatever licensed character names you want in the drafts onky you will see.

Would you fight it if someone plagiarized a piece of your writings? Would you rant all over the blogosphere in a way that could cost their reputation and sales whether legally right or not? Would you care how many sales they had?

I wouldn't count on the amount of sales of the published work being a consideration of whether or not the creators will care. Legal battle costs mean that they are likely to start with a cease and desist and potentially copy to all sites selling your book or place DCMA takedown notices (which are free and require immediate removal of your product/book until such time as you could provide legal proof you own all rights to all content).

Many game creators fanatically fight for their licensing, including licensed characters. Many are also fine with the registered trademark notices explaining somewhere. I'd ask.

Or you can take a whole other route and make the entire work based on the game and it's characters and post on fan fiction sites.

The amount of the sales is what it's all about. Nine chances out of ten, creators don't care if you use parts of their work when only a handful of people see it. Some do.

But if it makes money...that's when it becomes a sticky wicket..

Many game creators welcome the PR if they like the work. In that case though, you have another entity telling you would to do with your story.

Best to write the work as you see it in the initial drafts and then change it before you put it out there. That's what search and replace is for!

This is my last post on this thread. Until you have a finished product, we are arguing over nothing.

Not stray off topic, but why aren't there "like" or "thumb" buttons with discussions?

Kelly wrote: "Not stray off topic, but why aren't there "like" or "thumb" buttons with discussions?"
Because members on this site have repeatedly said, and voted in polls, that they do not want the ability to like comments. This isn't facebook.

Cynthia - I think I preferred your comment when it just said "no".

Let's start from the beginning. A name usually cannot be copyrighted, but it can be the subject of intellectual property rights. Try writing a book with Harry Potter in the title and see how long until the lawyers start knocking on your door.

Sure, you can change it at any point in the publication process. But if it is going to become an issue sooner or later, why not make the change during the drafting process and save yourself the hassle?

Whether the OP has a finished product or not is immaterial. Plagiarism is plagiarism however you dress it up.

Does it matter whether or not there will be a lawsuit? Is it wrong if you get sued but somehow right if you don't get sued? Wrong if caught but ethical if not caught?

If it was a very simple, very clear issue, would the question even be asked? (Again, if you feel you need to ask you that alone could indicate the need to get permission).

I read the op as "could I get in trouble down the road" and "what are the licensing laws?" Rather than "do you think low enough sales would protect me from legal actions by game creator or if legal actions are taken mean the damages awarded won't be bad?" (not always answerable except in court)..

The only people who know how creators would react are the creators. If sure they won't mind or would only mind if a certain amount if sales were made -- what's it hurt to ask them?

Sure, I might sob story myself out of a traffic ticket when pulled over by a cop. Or show a receipt where I just came from having the bad tail light fixed that caused me to be pulled over. Doesn't change the traffic laws.

Creators may not worry or do anything or even be aware of the book if little sales -- doesn't change what the laws and restrictions are.

Would their response change if book got published during their negotiating a book or movie deal licensing out same character? Many games have characters and other elements licensed out to movie productions or to big five publishing award winning authors - Microsoft's Fable, Dungeons and Dragons, etc, have -- would creator deciding to sue base that lawsuit on those anticipated sales or on the sales of the unpermitted book? If creator didn't, would the publisher who just negotiated to get the license sue? Would their own financial setbacks ever make them desperate enough to sue anyway? Has it happened so much to them they are now fed up enough to sue no matter what?

A lawyer or a court case could say for sure what the laws/restrictions are and what legal trouble you could face. The only action taken might be a written " stop" -- plenty of laws make things clear but most businesses and persons would rather avoid going to court over the issue if can be resolved another way. Doesn't change what could happen or what those laws are.

It could all just be resolved by getting permission. Or turn into inverted viral marketing if readers boycott the book because took it as intellectual theft rather than homage even without any legal actions (or persisted in thinking that even after author won lawsuits or creators said "sheesh, readers, get a life, if we don't care why do you?").

As a reader, I don'tparticularly have a problem with it if an extremely brief homage in an original work --unless I read somewhere that creator was upset. That's not the same as saying what's legal or that creator would/wouldn't mind.

Will wrote: "Cynthia - I think I preferred your comment when it just said "no".

Let's start from the beginning. A name usually cannot be copyrighted, but it can be the subject of intellectual property rights...."
Me, too. This is one of those 'cart before the horse' issues new writers love to focus on and then use as an excuse not to write. I'm sorry I commented at all. I keep forgetting this site has mostly self-published writers. My bad.

Here is a link to my blog post that makes my thoughts on this clear.
http://franklywrite.com/2016/03/15/wa...

I really don't think the laws differentiates between low sales or high sales. The amount decides if small claims court or not, I guess.

I'm not qualified to say if legal or illegal about op using similar character with exact same name as a presumably trademarked game -- except I am positive I've never heard of one where it's okay only if sales stay low enough. As a reader if I encountered that name from a game I was familiar with but used on a dissimilar character, I wouldn't question it unless really well known like the "Harry Potter" example up thread. I might if used on a similar character creation depending on how it was done.

I do know most game creators are extremely picky about licensing of all kinds of aspects of the game universe, particularly if they have or are planning to franchise out licenses for toys, books, etc. I do know that just in my business memos and tech docs that legal dept insists trademarks stay clearly credited.

I don't think it's the worst advice to say that if in doubt, find out before publishing or readjust the book to avoid (ask creator or get qualified legal advice).. Don't find out after publishing because of legal actions, cease and desist letters, bad publicity ...

ETA: and I'm assuming this is all about having an actual character in the book with same name and same characteristics as if author's own creation. .it's a different discussion if "attributing" "or named for" -- meaning you could talk about characters watching/thinking/discussing Star Trek or even use a character/place as a pet's name or totally dissimilar person/creation's name/nickname (a dog named Spock or a fish named Nurse Chapel) but .I wouldn't go up against Pocket or Paramount to write a book with a pointy eared logical Vulcan named Spock ...)

Faith wrote: "Kelly wrote: "Not stray off topic, but why aren't there "like" or "thumb" buttons with discussions?"
Because ... This isn't Facebook."

Something I'm very grateful for!.

Maggie wrote: "I've encountered this difficulty myself and consulted an intellectual property attorney about it. All characters in a "work" are copyrighted as property of the author unless they are historical fig..."

If you write a parody, be sure to indicate it's a parody. Mad Magazine got sued successfully early on because a judge [!] didn't realize it was obviously parody.

Will wrote: "Cynthia - I think I preferred your comment when it just said "no".

Let's start from the beginning. A name usually cannot be copyrighted, but it can be the subject of intellectual property rights...."

Right.

In the absence of a "thumb" or a "like" it's also become somewhat common on goodreads to reply saying "+1" (as in "my vote, too" or "I heartily second that")

To those who say a name/character can be copyrighted, it cannot.

However, it can be trademarked. So a character/figure in a video game may well have been trademarked. (This is a guarantee, in fact, if figurines of the character are sold, or used to promote other products. Think of ads that feature Smurfs, for example.)

To quote the Library of Congress:
"Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, [email protected] or see Circular 34, for further information."

Dude, just...don't do it. Don't. It's not worth the headache. Think up your own name.