Legal question sort of

[Ambriel]

My character in my latest book idea is going to exist in our world and is going to develop magical abilities in his mid thirties. He of course is a nerd who has read various fantasy books throughout his life leading up to this point. The point of view is going to be similar to that of him writing a journal describing what he does with the abilities he gets and how he tests them etc.

My question is, does anyone know if it would be an issue if he tried to use a spell from another book that really exists in our world? For example when he’s trying to figure out his powers he grabs a stick and yells “expecto patronum” or something like that thinking maybe he has to cast spells. That’s not actually how it’s going to work and that’s all the further the reference would go. Alternatively, would it be safer to mention the book in a more “I tried various spells from the Harry Potter series and none of them worked” sort of way. Is that even too on the nose?

 

[paranoid marvin]

My character in my latest book idea is going to exist in our world and is going to develop magical abilities in his mid thirties. He of course is a nerd who has read various fantasy books throughout his life leading up to this point. The point of view is going to be similar to that of him writing a journal describing what he does with the abilities he gets and how he tests them etc.

My question is, does anyone know if it would be an issue if he tried to use a spell from another book that really exists in our world? For example when he’s trying to figure out his powers he grabs a stick and yells “expecto patronum” or something like that thinking maybe he has to cast spells. That’s not actually how it’s going to work and that’s all the further the reference would go. Alternatively, would it be safer to mention the book in a more “I tried various spells from the Harry Potter series and none of them worked” sort of way. Is that even too on the nose?

I'm not sure, but it is worth considering the alternative; words and phrases that historically are affiliated with magic, but not (potentially) copywrited.

Also, would he try a spell which he knows is modern and fictional, when he could try one which is more ingrained into society, and potentially not?

I'm thinking of words like 'hey presto!' , 'abracadabra' etc.

 

[Ambriel]

I'm not sure, but it is worth considering the alternative; words and phrases that historically are affiliated with magic, but not (potentially) copywrited.

Also, would he try a spell which he knows is modern and fictional, when he could try one which is more ingrained into society, and potentially not?

I'm thinking of words like 'hey presto!' , 'abracadabra' etc.

That’s a good point, I hadn’t thought of that. My line of thinking was that he got storybook abilities so he might try something from a storybook despite knowing that it’s fictional. Expecto patronum was just an example. I was actually considering lumos since it’s rooted in Latin and much simpler spell than having to concentrate on the happiest moment of your life to cast. The principle still applies though.

 

[The Judge]

My question is, does anyone know if it would be an issue if he tried to use a spell from another book that really exists in our world? For example when he’s trying to figure out his powers he grabs a stick and yells “expecto patronum” or something like that thinking maybe he has to cast spells. That’s not actually how it’s going to work and that’s all the further the reference would go.

It isn't usually a breach of copyright to quote a very small extract from a work, so unless the phrase you use is actually trademarked (which is unlikely) you should be fine, especially if it's made clear that he is quoting a work because of his character. What you can't do is rip off the characters in the other works you're pinching from, nor should you include anything that might possibly be seen as defamatory of the authors.

The only possibly problem here is if you're quoting from the films rather than the novels, there might be more complications, film studios being rather more alert and less accomodating than authors.

Alternatively, would it be safer to mention the book in a more “I tried various spells from the Harry Potter series and none of them worked” sort of way. Is that even too on the nose?

That's perfectly fine, again as long as there's nothing said which is possibly defamatory.

 

[Ambriel]

Follow up question, I’ve seen that it’s dangerous to quote song lyrics in a book, but what about naming a song. For instance if the character is in a vehicle and “The Ballad of Mona Lisa” by Panic at the Disco comes on the radio. Is it okay to just use the name?

 

[HareBrain]

Follow up question, I’ve seen that it’s dangerous to quote song lyrics in a book, but what about naming a song. For instance if the character is in a vehicle and “The Ballad of Mona Lisa” by Panic at the Disco comes on the radio. Is it okay to just use the name?

Yes, that's fine.

 

[Matteo]

Actually, there are a bunch of Harry Potter phrases that are trademarked, or are in the process, and owned by WB.

But those are for various products (e.g. shirts) - Trademark Search

Therefore, using it as a phrase in a story should be OK - depending on how litigious WB want to be. Also, I believe that the US Act allows for parody (cf. Warhol's use of Campbell soup cans, etc.). So you could be funny about it, i.e.,
"Abracadabra". Nothing.
"Izzy wizzy, let's get busy". Nothing.
"Expecto Pa...hmm, maybe not that - don't want to get sued"

But I would stay clear.

 

[Ambriel]

Oh I am

Actually, there are a bunch of Harry Potter phrases that are trademarked, or are in the process, and owned by WB.

But those are for various products (e.g. shirts) - Trademark Search

Therefore, using it as a phrase in a story should be OK - depending on how litigious WB want to be. Also, I believe that the US Act allows for parody (cf. Warhol's use of Campbell soup cans, etc.). So you could be funny about it, i.e.,
"Abracadabra". Nothing.
"Izzy wizzy, let's get busy". Nothing.
"Expecto Pa...hmm, maybe not that - don't want to get sued"

But I would stay clear.

Oh I am so bookmarking that website!! That’s extraordinarily useful for my goal. My character is an “Everyman” guy living in modern Midwest America who is basically going to live every nerds fantasy of getting magic powers and being able to “do it right” per the Monday morning quarterback. I’m going to be making references like Ernest Cline did in Ready Player One.

 

[Ambriel]

Actually, there are a bunch of Harry Potter phrases that are trademarked, or are in the process, and owned by WB.

But those are for various products (e.g. shirts) - Trademark Search

Therefore, using it as a phrase in a story should be OK - depending on how litigious WB want to be. Also, I believe that the US Act allows for parody (cf. Warhol's use of Campbell soup cans, etc.). So you could be funny about it, i.e.,
"Abracadabra". Nothing.
"Izzy wizzy, let's get busy". Nothing.
"Expecto Pa...hmm, maybe not that - don't want to get sued"

But I would stay clear.

A friend of mine said something similar dealing with DnD magic. “I’m going to try to cast ball of fire” grumbles about open gaming licenses. Haha

 

[Ambriel]

Follow up, follow up question, my character is going to have magic and I’m considering having him be able to make his collection of action figures talk and move. Like the toys from Toy Story do but they don’t fall to dormancy when he comes into the room. Can anyone think of a legal issue with that? As long as it’s clear they are toys and not my own characters?

 

[The Judge]

As long as the toys which come alive aren't copies of the ones in the Toy Story films, you'll be OK -- so eg if you've got soldiers among the action figures, make them very different from the movie ones. Best not to have those action figures come from specific real-world movies, though, eg don't have a Han Solo figure, as that might fall foul. If need be invent your own adventure-type film and characters and their associated figurines.

 

[Ambriel]

So for instance any of the action figures I actually own in real life may not be a good idea. I have some from Star Wars, DBZ, Bleach, and Naruto to name a few. They’re probably off limits huh?

 

[The Judge]

It really depends on what you plan to do with the figures. If you just intend to mention in passing that, among others, Han Solo and Chewie come to life, that's fine. If you have them speaking and acting as their characters in the films, you're then starting to move towards trouble -- film companies are litigious.

By the way, I've done talks on copyright for the Chronscast -- the first one I did a precis of here The Toolbox -- The Important Bits and that gives you a link to the Chronscast thread so you can follow up on the talk when you've time. The talk on ownership of characters I never got around to summarising, but the Chronscast thread is here Episode 19 - Uprooted with Anne Perry

 

[Ambriel]

It really depends on what you plan to do with the figures. If you just intend to mention in passing that, among others, Han Solo and Chewie come to life, that's fine. If you have them speaking and acting as their characters in the films, you're then starting to move towards trouble -- film companies are litigious.

By the way, I've done talks on copyright for the Chronscast -- the first one I did a precis of here The Toolbox -- The Important Bits and that gives you a link to the Chronscast thread so you can follow up on the talk when you've time. The talk on ownership of characters I never got around to summarising, but the Chronscast thread is here Episode 19 - Uprooted with Anne Perry

They wouldn’t be living out the plot lines from any of the stories mentioned. Really it would be him experimenting with his magic and having them do battle with each other, like a crossover mashup of good guys and bad guys from the aforementioned anime series fighting with each other for the characters personal entertainment. Basically fulfilling, I imagine, many nerds fantasies of having characters from different universes fight each other. Could it potentially fall under the category of fan fiction?

I will definitely check out the links you sent me and thank you for being so encouraging, helpful, and swift with your answers. I’ve said before and I’ll say again now, it’s nice to find a space on the internet fairly free of flame wars.

Silly question, how do I actually watch the episode? I’m not seeing a link to a video anywhere.

 

[The Judge]

They wouldn’t be living out the plot lines from any of the stories mentioned. Really it would be him experimenting with his magic and having them do battle with each other, like a crossover mashup of good guys and bad guys from the aforementioned anime series fighting with each other for the characters personal entertainment. Basically fulfilling, I imagine, many nerds fantasies of having characters from different universes fight each other. Could it potentially fall under the category of fan fiction?

Personally I'd avoid this, but then, I was a lawyer and therefore by training risk-averse!

If you keep it at the level of "He brought X, Y and Z to life and let them fight it out" there's unlikely to be a problem, but if you go into long detail about their specific fighting techniques with suitable sarcastic quips or characteristic comments then you run the risk of going too far.

I will definitely check out the links you sent me and thank you for being so encouraging, helpful, and swift with your answers. I’ve said before and I’ll say again now, it’s nice to find a space on the internet fairly free of flame wars.

I'm happy to help! We're fortunate in being spared flame wars as for the most part our members are intelligent and understanding and don't want any unpleasantness, and those who aren't like that get turfed out very quickly!

Silly question, how do I actually watch the episode? I’m not seeing a link to a video anywhere.

Ah, yes, I forgot that Dan stopped giving a link. It's audio rather than video, so luckily for everyone you only have to listen to my voice not see me (I have the perfect face for radio...). This thread has some links, but I think the Zencastr one has gone by the board. Links To Listen With

Spotify is here Chronscast - The Fantasy, Science Fiction & Horror Podcast and it's then a question of working down the list and finding the right podcast for the right talk from me -- Dan does set out approx times to help if you want just to go straight to the talk.

 

[Ambriel]

If you keep it at the level of "He brought X, Y and Z to life and let them fight it out" there's unlikely to be a problem, but if you go into long detail about their specific fighting techniques with suitable sarcastic quips or characteristic comments then you run the risk of going too far.

That’s more what I was thinking, I’m doing a terrible job of explaining what’s in my head. Despite the various characters having their down special abilities in their respective shows the most they’d be able to do is physical combat since they would, after all, still be toys. As far as conversations between them, if I didn’t use quotes from the actual shows, but instead gave them their own quotes would that still be pushing the boundaries?

 

[Matteo]

You might want to consider Has anyone done this before? And if not, Why not?

Either no-one has thought of it (which seems unlikely), or they have but the legal department of their publisher has advised against it.

My knowledge of TM and copyright law is less than @The Judge so I'm reluctant to advise. That said, I have seen (on the publishing details page of books) references such as Such-and-such is a registered trademark of Whatisname Inc. (but I suspect just that by itself is not sufficient to avoid litigation - i.e., approval has been granted) or lyrics to Ladida used with kind permission of...

Personally, I would play safe and invent fictitious* characters. You could make them close enough to real-life characters that the reader would "get it", but avoid any problems.

*err...Han Solo is fictitious, but you know what I mean

 

[Ambriel]

Could a works cited, which I know isn’t necessary for a fiction book, potentially protect from legal issues. Giving credit where credit is due?

 

[The Judge]

That’s more what I was thinking, I’m doing a terrible job of explaining what’s in my head. Despite the various characters having their down special abilities in their respective shows the most they’d be able to do is physical combat since they would, after all, still be toys. As far as conversations between them, if I didn’t use quotes from the actual shows, but instead gave them their own quotes would that still be pushing the boundaries?

You'd be safer if you didn't use dialogue from the shows, but it really depends on what you do and how willing you are to take the risk of spending a lot of time and effort on something that brings with it the danger of nasty letters from expensive lawyers.

Ask yourself what this is going to add to the plot and your main character. If you're just doing it for the fan fiction vibe, so others who know the shows nod and smile in recognition, well, there are plenty of people out there doing the same, but if you were thinking of making money from it, you're running into trouble.

Could a works cited, which I know isn’t necessary for a fiction book, potentially protect from legal issues. Giving credit where credit is due?

Fan fiction does tend to have similar disclaimers as Matteo points out, but it's not a panacea, no. In my talk on plagiarism I do talk about fan fiction, and this summary points you in the right direction The Toolbox -- The Important Bits and in the post I've linked to above about copyright (three posts up from that plagiarism one) if you read down there's an edit with a link to an American site which may be of interest.