PDA

View Full Version : Using a name that's already in use...?


HaphazardJoy
07-25-2006, 05:42 PM
I've had this comic idea tumbling around in my head for a long while, and was tossing around 'codenames' for characters, and wanted to use the name Fahrenheit for a character who controls temperature. Now there's a Wildstorm character, different gender, different kind of concept, but same name and similar powers. Now I know there's other cases of the same name being used by multiple companies, similar concept even like Marvel and DC both having Scarecrow villains.
Would this be a legal issue?

The-Spirit
07-25-2006, 05:50 PM
I don't know but I wouldn't risk it. Try re-spelling it or adding something, like FairenHeil like a German Nazi character or Fahrenhight for a Giant type flame character.

Or Fahrenheit 451 or something, I can't think of anything better but I roll names around for awhile.

HaphazardJoy
07-25-2006, 06:03 PM
Hmmm... Celsius? Kelvin? :har:

But no, I'd really like to use Fahrenheit, harumph.

Gonzogoose
07-25-2006, 06:06 PM
The worst that can happen is they send out a cease and desist, then you have to change it. Check for copyrights on the name. But with similar powers that might be touchy.

HaphazardJoy
07-25-2006, 06:15 PM
You can't copyright just the name, but you could make a trademark of it. It's the combination of that with the powers (which is an obvious power for the name) that worries me. I mean, Marvel and DC having a Scarecrow villain each who scares people, that makes me feel a little better. Obviously I don't want to rip anyone else off, but I would like to use the name. I just don't know where the line falls.

L Jamal
07-25-2006, 06:24 PM
Actually Marvel's Scarecrow was originally an contortionist acrobat.
Unless there is a pressing reason for the character to have the same name, I would use another name. They don;t have to send a cease and desist as they can just sue. Cease and Desists are courtesies sent out to avoid spending money on lawsuits

HaphazardJoy
07-25-2006, 06:30 PM
Yeah, but he also developed a 'scare' pheremone.

I was originally thinking the name Helios, but I know that's another Marvel character and I've seen someone else around here working on something with that name too.

Buckyrig
07-25-2006, 06:38 PM
The idea of cracking down merely on a name will have to go away eventually. I mean, eventually we'll run out of words...they can't all be off limits.

HaphazardJoy
07-25-2006, 06:42 PM
Well that, and especially such obvious names. Typhon is another name I was looking at, and again, both Marvel and DC have characters of that name (very different characters, Marvel being directly based on the figure from myth). I mean, Marvel couldn't stop someone from doing their own Thor comic, could they?
You can't copyright just a character, but use that character in a piece of fiction and it's protected, where are the lines? I know with cases like mythology or commonly told stories, that the general ideas and plots can be used by multiple people as much as they like.

L Jamal
07-25-2006, 08:03 PM
The Thors are based upon the myth which is within Public Domain. In theory as long as you didn't use the character's name as a title for your book, it would not be a problem. However, consult a intellectual propperty lawyer before committing too much.

the other mike
07-25-2006, 10:35 PM
spaeking of names and copyrights...
is the word "super-human" (or was it "superhero"?) still copyrighted? i seem to remember the term being owened by marvel and/or dc....

cool hero names are becoming harder and harder to think up.

Buckyrig
07-25-2006, 10:52 PM
The Thors are based upon the myth which is within Public Domain. In theory as long as you didn't use the character's name as a title for your book, it would not be a problem. However, consult a intellectual propperty lawyer before committing too much.

Is that a specialty now...or would you just go to an entertainment lawyer?

HaphazardJoy
07-26-2006, 02:02 AM
I read something just recently about DC and Marvel doing tagteam facist action on trying to pin down 'superhero' as their mutual property. For now I think it's still safe, until the corporations take over our souls.

ShanE
07-26-2006, 03:21 AM
Yeah jsut go with something that means the same thing in another language. or older belief system of an ancient race.

Kel Nuttall
07-26-2006, 04:14 AM
I read something just recently about DC and Marvel doing tagteam facist action on trying to pin down 'superhero' as their mutual property. For now I think it's still safe, until the corporations take over our souls.This is very old news that someone recently did a story on and the younger generation thinks it's new news. They jointly own superhero and super-hero and they have for a quite a while....since the late 70's I believe.

Scribe
07-26-2006, 08:44 AM
My understanding is that you can't copyright a specfic, prexisting word in a meduim. Just because there is a character callled Fahrenheit doesn't preculde the possibility that the could ever be used for a character that controls heat because fahrenheit is a measure of temperature, it seems like reasonable and fair use of an existing concept.

Also, the big two aren't stupid. They wouldn't sue some working class guy putting out comics because they know they would never recover their legal fees as most of us are pretty judgement proof.

r nelson
07-26-2006, 11:45 AM
My understanding is that you can't copyright a specfic, prexisting word in a meduim.
That's my understanding as well. However, as I understand it you CAN copyright a specific word usage in a specific format -- I can make a character named Conan, but if I make him a barbarian king and put him in a comic, I'd be infringing on someone's intellectual property if not their "copyright" per se. It's a matter of degree, though: Name, appearance, abilities.

Character named Jean? Fine. Character named Jean Grey? Also fine, but be willing to catch hell from anyone who's ever read an X-Men comic book. Character named Jean Grey who has telekinetic powers? You're walking on thin ice, and will probably get a letter from Marvel's lawyers asking you to kindly knock it off. Character named Jean Grey who has telekinetic powers and is a hot red-headed chick? You're gonna get your pants sued off. I'm certainly not an expert on this, but I think that's the way it works.

I think the bigger issue with name-use is not looking like an ass to fans and the rest of a very insular industry by making a character that's too similar to a pre-existing one -- it connotes laziness and a lack of creative spark, or worse, that you're an idea thief, even if it doesn't lead to lawsuits being filed. Looking like an ass to the former can hurt your sales. Looking like an ass to the latter can hurt future employment and your ability to pitch a concept/story.

My advice -- come up with a new name. Less hassle in the long run.

They wouldn't sue some working class guy putting out comics because they know they would never recover their legal fees as most of us are pretty judgement proof.
Heh. Ain't THAT the truth!

- Richard

acgrant
07-26-2006, 12:07 PM
Is that a specialty now...or would you just go to an entertainment lawyer?

It can be a specialty. One of my partners is an IP specialist, and copyrights and trademarks are pretty much all she does. An entertainment lawyer may be able to help with some basic copyright issues, but his or her practice is likely to be more agency/contract based. If you want someone to track all the filing requirements for your copyrights and trademarks, I'd recommend going to a specialist.

Scribe
07-26-2006, 01:41 PM
I think the bigger issue with name-use is not looking like an ass to fans and the rest of a very insular industry by making a character that's too similar to a pre-existing one -- it connotes laziness and a lack of creative spark, or worse, that you're an idea thief, even if it doesn't lead to lawsuits being filed. Looking like an ass to the former can hurt your sales. Looking like an ass to the latter can hurt future employment and your ability to pitch a concept/story.


I think you're right on. Look how much shit Kirkman has taken for the opening of Walking Dead's similarities to 28 Days Later.

Still, if you're clearly playing with archtypes its okay to have similarities to other characters. Busik's Astro City is one of my all time favorites but a number of his chracters are clear takes on archtypes from the DC and Marvel U's, and no one has ever complained about AC.

HaphazardJoy
07-26-2006, 04:22 PM
Well, I'm not too familiar with WildStorm's Fahrenheit, but I'd wager good money that the similarities end with the name and powers. I can come up with another name, I already have a few others but none I like as much. I'd still like to find more out about this for future ref anyway.

Raven
07-26-2006, 04:27 PM
Too many people spend too much time worrying about shit like this.

Just do your book, make it good and get it out there. If its good, no one will even remember those lame ass characters, if it makes money, no one can stop it either.

Marvel and DC aren't going to waste the time, if the fans dig it, the comic publishers will swallow it.

JSettnek
07-27-2006, 11:16 PM
Your best bet is to just alter the spelling or change it altogether. Even if they file a ceast and desist ot just flat out sue you you are going to have to pay money for lawyers if you want to fight it. There's no winner in lawsuits, it's just different degrees of losing.