How do you keep a copyrighted name?

Since I'm in a dork mood, here are the etymologies of a few of the Tolkien-esque and D&D words that are often disputed (all come from the Online Etymology Dictionary):

ORC
"ogre, devouring monster," O.E. orcþyrs, orcneas (pl.), perhaps from a Romanic source akin to ogre, and ult. from L. Orcus "Hell," a word of unknown origin. Revived by J.R.R. Tolkien (1892-1973) as the name of a brutal race in Middle Earth.


HOBBIT
1937, coined in the fantasy tales of J.R.R. Tolkien (1892-1973)... The word also turns up in a very long list of folkloric supernatural creatures in the writings of Michael Aislabie Denham (d.1859), printed in volume 2 of "The Denham Tracts" [ed. James Hardy, London: Folklore Society, 1895], a compilation of Denham's scattered publications. Denham was an early folklorist who concentrated on Northumberland, Durham, Westmoreland, Cumberland, the Isle of Man, and Scotland.... It is curious that the name occurs nowhere else in folklore, and there is no evidence that Tolkien ever saw this. The word also was recorded from 1835 as "a term generally used in Wales to express a quantity made up of four Welsh pecks." Hobbitry attested from 1947.


DWARF
O.E. dweorh, dweorg (W.Saxon), duerg (Mercian), "very short human being," from P.Gmc. *dweraz (cf. O.Fris. dwerch, O.S. dwerg, O.H.G. twerg, Ger. Zwerg, O.N. dvergr), perhaps from PIE *dhwergwhos "something tiny," but with no established cognates outside Germanic. The mythological sense is 1770, from German (it seems never to have developed independently in English). ... O.E. plural dweorgas became M.E. dwarrows, later leveled down to dwarfs. The use of dwarves for the legendary race was popularized by J.R.R. Tolkien


COBWEB
early 14c., coppewebbe; the first element is O.E. -coppe, in atorcoppe "spider," lit. "poison-head" (see attercop). Spelling with -b- is from 16c., perhaps from cob. Cob as a stand-alone for "a spider" was an old word nearly dead even in dialects when J.R.R. Tolkien used it in "The Hobbit" (1937).


HALFLING
"one not fully grown," 1794, from half + -ling.


LICH
lich (n.) also litch, lych, "body, corpse," southern England dialectal survival of O.E. lic "body, dead body, corpse," cognate with O.Fris. lik, Du. lijk, O.H.G. lih, Ger. leiche "dead body," O.N. lik, Dan. lig, Goth. leik, from P.Gmc. *likow. Cf. litch-gate "roofed gate to a churchyard under which a bier is placed to await the coming of the clergyman."


BUGBEAR
1580s, a sort of demon in the form of a bear that eats small children, also "object of dread" (whether real or not), from bug (n.) + bear (n.).


Semi-related sidenote: the first name "Wendy" was popularized by J.M. Barrie, author of Peter Pan. The name existed but was very rare before then, at least according to this Straight Dope author.

Love the look, Captain, and I trust you to portray our hero well!

Also, glad to see you went with the maul, as it should be!

I once messed around in the costume creator with making a traditional Heracles (I am part Greek, after all), and it looks like we both went with similar directions.

Thanks, Knight. I had to wriggle the famous club into his hands through other means, because in the version of the myth that I love most, he fought the Nemean Lion with his bare hands (instead of stunning it with his club) and received the club much later as a reward during his adventures.

In the story he went back later to cut the Lion's mane off for armor (something that can't be replicated in the character editor at this time). But in this case, the Lion barely survives and crawls into the Red River and is swept away to the shores of the Rogue Isles. I plan to create an AE arc in which the Nemean Lion is Hercules' arch nemesis, something that absolutely can be done now .

You need to get on my global, I don't come to the forums as much anymore, and I'd love for us to meet each others characters. 99 percent of my RP happens in or between missions, not standing around somewhere!

Are you serious???
So, now that you got a slew of replies boasting the same "ridiculous theories", did that help clarify anything for you at all??

I almost feel sorry that I even bothered to be polite and offer help and explanations for you... I say "almost sorry", because, honestly, it is always worth being polite, because being polite is about who you are and not what the other person is like.
And you... you show what you are like by your reply to Captain-Electric right there.

Eesh. Sorry I missed the fun elsewhere Captain. With that insight, I almost regret trying to be informative and constructive with the OP in this thread.


Ok, If I could, some specifics regarding your Hercules.

1) Copyright isn't the real issue here.

As I said before, this is 95% Trademark related.

2) Public domain is almost as irrelevant.

Public Domain is related to copyright. Being able to show that the original work is in public domain, and the current publishers (marvel and DC) derived their work off of it, as did you, just really helps you with that 5% that's copyright-related.

3) Marvel matters here.

As you illustrated in your posts, Marvel's lawsuit has made NCSoft a bit trigger-happy when dealing with their properties. While the details of the settlement have never been disclosed, NCSoft is usually very sensitive about the appearance of Marvel's trademarked properties appearing in-game, so we have to assume that they agreed to a degree of due diligence in protecting Marvel's registered marks of trade. Its also clear that they move against other marks of trade, probably so they don't have to waste tens (hundreds) of thousands in similar litigation.

NOTE: Marvel didn't "win" against City of Heroes. Marvel had several of its biggest arguments dismissed before they settled (with the agreement sealed). Marvel essentially claimed that if CoH allowed players to use their trademarks in-game, CoH was in violation. It was a shaky argument, but
NCSoft's sensitivity to the issue show that, even if they'd eventually win, they really don't want to waste tens of thousands of more dollars defending every single similar suit that comes along.[/b]

As it relates to Marvel is in the practice of registering the trademark for any notable character they create... when they can. Their list is quite extensive. Further, they try to register them across several industries, from clothing to comics to movies to video games. its really only the "video games" ones they can have issue with. If they think there's a chance a character will be on a t-shirt or be a titular character in a video game, it just makes sense to register them before someone else does, after all.

Sometimes they're not the first to register the name in that particular field ("Wolverine" boots, for example). Sometimes a character is too fleeting and inconsequential to register it across all the different media types. Sometimes they just goof. For the most part, we can just assume that if they registered the trademark for comics, then they probably did so for the related media, including games.

For that reason, you can usually assume a kneejerk reaction to genericing easily-recognizable marks of trade for the major publishing houses.

4) Hercules is a fortunate exception

So, you'd think that since Marvel has a Hercules character and they have a habit of trademarking their characters across many business fields, that your Herc would be generic'ed terribly fast.

But Marvel didn't register the name "Hercules" by itself-- not because of its historic roots (see "Nike" ) but because by the time he was created in the 60's, others had already printed tales of Hercules in comic format, he'd appeared as a character in a Wonder Woman comic in the 40's, and there had been a whole series of pulp movies based on the characters. The name "Hercules" by itself just wasn't distinctive enough in the field for them to get it regitered as a mark of trade.

In this case, since the name was too ambiguous, they registered trademarks for "hercules" combined with a likeness of their version and they registered partuclar text combinations that appear in Hercules titles ("the INCREDIBLE Hercules" being one of the most recent, so be careful on what title you choose ingame.).

You'd only be at risk of violating the trademark if you used the ENTIRE mark of trade. In this case, that's name+likeness or "name+other words" (like above).


5) Your adherence to mythology may not matter here.

As cool as it sounds-- and I'd love to interact with you online with it. It REALLY doesn't matter. A trademark is a trademark, and they're the most expensive thing for NCSoft to let pass. You're good fortune is that the name alone is not a registered trademark by them. In many other cases, it IS.

I play the Mythic Hercules, and in light of this little issue, I've gone ahead and written the CS team to reassure them that he bears no similarity to any trademarked likenesses, and invited them to inspect Hercules' likeness and bio. I've also directed them to this thread and to the Virtue Name Watch thread. Per their policies I won't divulge any communication that happens, but I'm not worried about it. No one owns historical mythical figures, and my character's likeness was created while looking at pictures of statues and paintings from ancient Greece, and was afterward double-checked against the terribly inaccurate representations owned by various publishers and entertainment companies.

What I am, is embarrassed for indirectly causing a waste of time for CS, and for what may have been a lack of good judgement in offering some tips to a player I wasn't familiar with.

Calm down.

Since you just PUBLICLY said you were going to try and have him genericed for a character that there is no trademark on, he can now file a complaint against YOU for harassment.

You know that, right?

Just sayin'.

People aren't "getting away" with things. They are creating characters that don't violate trademarks.

You on the other hand, created characters that DID violate trademarks, and got punished accordingly.

Whine about it if you like, but the fact is, he did nothing wrong here and isn't "getting away" with anything. Your opinion to the contrary means nothing here.

Great discussion... and very very informative too. Mostly because I too have a main based on history, legend and lore. And although I have been pointed out for being not original... the name is not trademarked or copyrighted anywhere. And the looks are based on paitings and descriptions.

Báthory Erzsébet (Erzsébet Báthory, Elizabeth Báthory)