How do you keep a copyrighted name?

There are really two issues here, the EULA/culture of enforcement and why names of existing characters are generally off-limits. The EULA, as enforced by the GM's, is just an agreement between player and game provider. It could be written to require or prohibit almost anything. But for our purposes here, what's important is that it's written to provide that (1) players can't use the game to infringe other people's intellectual property rights and (2) to make sure they don't, GM's can generic characters that they think might do so, even if a court might make a different conclusion.

It's that second part that brings in the second issue, and it's one about which a lot of misinformation is flung, so let's consider it now.

Elaborating a bit on what ClawsandEffect said, Do Your Part To Keep Geekdom Popular Culture Accurate and distinguish between copyright and trademark. Most characters that get described as "copyrighted" are covered by both.

A "trademark" is the right to use a word, phrase, or more or less single image in connection with some specific use. For example, Taco Bell has a trademark on the name "Taco Bell" in connection with restaurants. If a bellmaker decides to market his bells as "Taco Bells," Taco-Bell-the-restaurant-company would probably either demand they pay him for the use of the name or sue him to get him to stop, despite the fact that their use is ostensibly limited to restaurants. If the case made it to court, the finder of fact would consider whether there is a "likelihood of confusion" between Taco-Bell-the-restaurant and Taco-Bell-the-bells such that a person might think the two were connected.

A "copyright" is a group of rights that cover a specific work of art, such as a comic book, movie, novel, or video game. The right in question here is probably the right to make derivative works. Say that, in a fit of total insanity, I want to make a movie called Ben-Hur Part II: Ramming Speed! I cannot do this without buying or otherwise getting the right to make a derivative work of whoever holds the right to the original work, Ben-Hur. (This is an especially interesting example because the original movie itself is an adaptation, another derivative work, from a novel.)

Now, finally, we can come around to the discussion of what these fora mean by "copyrighted character." As the discussion above should show, you can't really copyright "a character" in the abstract because copyrights apply only to specific works, not the elements of which they're composed. "But if that's true, Olantern," I hear you cry, "why can't I make Ap0calypse as an in-game character?" There are two reasons.

The first, simpler one is that you're potentially violating Marvel's trademark in a superpowered character named Apocalypse, even if your Ap0calypse has a zero in his name and looks nothing like the Marvel one. Would a reasonable, non-comic-maven person think your character and Marvel's were connected? It seems likely.

The second, subtler reason is that by taking a character who's appeared in a copyrighted story whose rights are owned by Marvel, you're potentially making an unauthorized derivative work of that copyrighted story. Note, too, that the fact that you're presumably not trying to take any of Marvel's business away doesn't enter into either of these considerations.

There are lots of exceptions and permutations to both these bodies of law, but those are the basics. One exception mentioned already in this thread is that works can fall into the public domain over time and thus lose copyright (though not trademark) protection. I'd just like to say here that popular culture tends to misunderstand and often overstate the scope of exceptions to those rules, so don't rely on them without consulting an attorney. (In fact, that last bit of advice goes for everything in this post.)

Now, let's bring this back to Thor, since he comes up so often in these discussions. We're dealing with three things. First, we have the "idea" of Thor, a Norse god of thunder with power over lightning and such. No one holds any enforceable rights in just that idea. (While there is a body of law called the "law of ideas" that theoretically covers this kind of thing, those laws are weak, and Thor the thunder god is presumably public domain or its equivalent for purposes of this discussion.) Second, we have Marvel's trademark on Thor, a blond-haired Asgardian superhuman quasi-deity who fights villains and appears in comic books and derivative media. Third, we have the zillion copyrights on every Thor-the-superhero story ever published in any medium. For instance, Marvel holds a copyright in the story contained in THOR #350, "Ragnarok and Roll!"

With all that in mind, imagine that a player makes a character named "Thor." This Thor has blue skin and is a villain earth/forcefield controller, and his biography states that he's an alien from the planet Zarx using his natural powers to steal all the gold on earth. Very different from any of the Thors mentioned in the last paragraph, right? So why does a GM generic the character when he spots it?

Hopefully, based on the rest of this post, you can see why. First, while the player could argue, perhaps successfully, to a court that no one would confuse villaintroller-Thor-from-Zarx with Marvel Thor, it's just as easy to argue that someone could. (Think about your non-comics friends, the kinds of people who say, "I don't go to those movies because they're so silly.") Second, even if the player wins that argument, villaintroller-Thor-from-Zarx might be derived from one of the copyrighted works about Marvel-Thor that are out there. (The argument might run something like, "Why else would someone call a supervillain 'Thor' except to reference the superhero Thor?" I'd call this a losing argument, but it isn't a frivolous one.) And, most importantly for the player, the mere possibility that those arguments could be raised are sufficient reasons for a GM, who probably doesn't even know this legal abstraction stuff anyway, to generic the character, because the EULA allows for exactly that. A concern is all the GM needs, not an airtight legal argument.

Those are the issues in a nutshell. Sorry for the long post; I didn't mean to write a treatise when I started. I hope people found that interesting, or at least helpful. (Disclaimer: Nothing contained in this post should be taken as legal advice. If you actually need legal advice, consult an attorney. I just read recently that there's one for every 256 people in the U.S., so there are plenty out there.)

(sigh) and yet we still have confusion between copyright and trademark.

1) As some have noted, for something to be copywritten, it has to be a unique work. You don't usually get away with copywriting a single word (unless you made it) and even a small combination of words is suspect. You can write a story about the son of Zeus in the modern era and copyright the work, but that doesn't mean others can't write about Zeus anyomre. Heck, even things that seem unique often aren't. For example, "Skywalker" is a legitimate surname existing before star wars. "Luke" is also. The unique coupling of "Luke Skywalker" isn't something Lucas can hold copyright over. The adventures he wrote regarding Luke (and the description he applies to HIS Luke) is.

2) TRADEMARK is different. You can register a trademark of "Hercules" for the comic book field and than nobody else in that field can use that mark of trade. A trademark can be a word (Nike) a design (the nike Swoosh) or a combination of the two. Note that Nike is a name from mythology.

Most comic companies register both the name and the likeness of their heroes as marks of trade over a wide range of fields (comics, games, apparel, etc). Since they use a lot of common words, they oftentimes register both the name and the likeness together, meaning that its the whole package that they're claiming as a mark of trade, not one or the other. Its only when used in conjunction that the mark of trade would apply.

That's why some clear comic character names often are allowed in-game. While I may be claiming to be "Hercules" I'm not adopting the likeness of Marvel's Hercules. While I may even claim to be "Nike" I don't style my character to look like a product placement.



Trademark is touchy, though. While a copywritten work is guaranteed ownership for the creator for a defined time, a trademark has to remain in use and be defended by the owner for it to remain relevant. Some trademarks were so successful in defining a product that it became the generic term for that product, and if the trademark owner isn't careful, a judge can basically say that the trademark is no longer valid ("Kleenex" tissue paper, "Jello" gelitan, "Coke" cola, and "Xerox" copying machines are all examples of trademarks that almost became generic).

Because of this, trademark lawyers often VIGOROUSLY defend their properties, getting a reputation of being sue-happy. They have to, even if a judge comes along and rules that X isn't a trademark violation, just to maintain that vigilance.

... and because of THAT, the devs often are a little overcautious in getting rid of names that really wouldn't be a trademark violation. If something's not clearcut safe, its better to not risk angering the lawyers. Even if they'd eventually win, they'd be paying lawyers a lot more than your monthly subscription is worth... (unless you'd prefer they just pass your contact info on to any lawyers and have YOU defend yourself in court...)

I had my Perky Nipples genericed. And yes, I'm still mad about it. It was an Ice/Kin corruptor which is now named Mercury Tundra.

*copyright
*copyrighted

As in having the right to copy something. Because, you know, that actually makes sense.

"Copy writing" is something else entirely.

To borrow an example my husband uses often:

If I make an 8-foot-tall female Fire/Fire blaster named Gimli, I could probably get away with it (archaic Old Norse word "gim," which means "fire" IIRC). If a GM asked, I have every right to point out that it's simply a word from another language.

I make a short, male, bearded Axe tanker in heavy armor and call him Gimli... incoming genericization in 3... 2... 1...

Michelle
aka
Samuraiko/Dark_Respite

I may be signing my own /generic slip, but it turned out Oedipus Tex was a copyrighted name (it's the name of a choral work by PDQ Bach, but I was too much of a Philistine to know about that until several months after I selected the name). I've been lucky so far I guess.

[Backstory: The reason I ended up called 'Oedipus Tex' is actually because on my first week or so in game, I decided that I would center my character around the Texas hat costume piece. In college I was briefly the photo editor of the yearbook, responsible for caption writing, so my way of coming up with captions was to start with a word - "Tex" in this case - and go through the alphabet replacing one letter. That led to 'Lex, Mex, Nex, Pex (Pecs?), Qex, Rex," and ultimately the character and forum ID. I am actually not from Texas--I am from Louisiana--but I never identified with my Martie Gras, Frat Tuesday, or Jazz Funeral characters quite as much. FWIW the "Turban Legend" character from my sig was going to be called "Bourbon Legend" but I doubted I could make a read-able costume.]

I think Olantern and Chase_Arcanum managed to hit on every important point on the issue. Well done.

I feel obliged to point out:

Names are not copyrightable, let alone copyrighted. Characters can enjoy copyright protection in some circumstances, though the exact boundaries vary widely from one court to another. Names can in some cases be trademarked.