Lovecraftian Lawsuits Pt II
August 26, 2008 11:56 AM Subscribe
This is a bit of a follow up to this question. I'm contemplating a small comics project staring a fictionalised version of HP Lovecraft (something I've done before but thsi will be slight higher profile) and the title will be something along the lnes of "H.P. Lovecraft's World of Weirdness". Is the use of his name in the title like that, which might imply some kind of authorship or endorsement or somesuch, likely to bring the Lovecraft estate down on me like a ton of bricks?
I was under the impression that Arkham House, founded by the late August Derleth, held trademark rights for H.P.L., Cthulhu, and so forth. Those rights don't expire, unlike copyright. I can't be specific, but I recall that they have successfully sued infringers.
posted by ten pounds of inedita at 1:26 PM on August 26, 2008
posted by ten pounds of inedita at 1:26 PM on August 26, 2008
I would be exceptionally wary about using Lovecraft's name in particular. That could create an independent trademark violation even if the works themselves are in the public domain. It also probably wouldn't play well with any potential copyright-infringement arguments. Is it really necessary to use his name? The question you'd get asked in court would be something like, "Well, why did you use the name if you weren't trying to trade on his image?"
(Incidentally, it seems to me that one of the confusing things about the copyright question here is that Mythos itself has more or less passed into the public consciousness, largely thanks to Derleth's attempts to popularize it -- which weren't entirely faithful to the original work. That said, the fact that copyright status is confusing or questionable certainly doesn't mean someone can't file a lawsuit against you or that you wouldn't have to pay to defend it.)
The important things to avoid are: (1) using the name and (2) copying any parts of any story verbatim. You're rolling the dice no matter what, of course, but those are the main things that would be worth losing sleep over.
[Standard disclaimers apply -- none of that is intended as legal advice, don't rely on it, don't break the law, etc.]
posted by spiderwire at 5:04 PM on August 26, 2008
(Incidentally, it seems to me that one of the confusing things about the copyright question here is that Mythos itself has more or less passed into the public consciousness, largely thanks to Derleth's attempts to popularize it -- which weren't entirely faithful to the original work. That said, the fact that copyright status is confusing or questionable certainly doesn't mean someone can't file a lawsuit against you or that you wouldn't have to pay to defend it.)
The important things to avoid are: (1) using the name and (2) copying any parts of any story verbatim. You're rolling the dice no matter what, of course, but those are the main things that would be worth losing sleep over.
[Standard disclaimers apply -- none of that is intended as legal advice, don't rely on it, don't break the law, etc.]
posted by spiderwire at 5:04 PM on August 26, 2008
If you call a book project "H.P. Lovecraft's" anything, you will be getting some angry mail from the Arkham people's lawyers, because you will be violating the "right to publicity" that they believe they own as the heirs to his copyrights.
You can have H. P. Lovecraft as a character in your book, because he was a real person. But if you give your book a title like "H. P. Lovecraft's {some phrase that implies a collection of writing}" it can be argued that you are asserting a "right to publicity" that you do not own--that you are faking a posthumous endorsement, or imputing a posthumous involvement of Lovecraft in collecting or editing your writing.
Now, I don't know how a court case would go. The Arkham House people would cite the Fred Astaire Celebrity Image Protection Act, and your lawyer could find a bunch of other cases to cite in opposition.
But do you really want to get into this? Because the Arkham House folks will take you to court over it. Which is not to say that they would necessarily win, mind you.
posted by Sidhedevil at 5:07 PM on August 26, 2008
You can have H. P. Lovecraft as a character in your book, because he was a real person. But if you give your book a title like "H. P. Lovecraft's {some phrase that implies a collection of writing}" it can be argued that you are asserting a "right to publicity" that you do not own--that you are faking a posthumous endorsement, or imputing a posthumous involvement of Lovecraft in collecting or editing your writing.
Now, I don't know how a court case would go. The Arkham House people would cite the Fred Astaire Celebrity Image Protection Act, and your lawyer could find a bunch of other cases to cite in opposition.
But do you really want to get into this? Because the Arkham House folks will take you to court over it. Which is not to say that they would necessarily win, mind you.
posted by Sidhedevil at 5:07 PM on August 26, 2008
I was under the impression that Arkham House, founded by the late August Derleth, held trademark rights for H.P.L., Cthulhu, and so forth. Those rights don't expire, unlike copyright. I can't be specific, but I recall that they have successfully sued infringers.
I'd actually like to see a cite for that. Trademarking "Lovecraft" is potentially plausible, but you can't keep trademarks if you don't defend them, and "Cthulhu" is a nearly ubiquitous term. It's possible that they've won suits, but that doesn't necessarily mean anything -- any lawyer who lost to the Cthulhu™ argument should be ashamed.
posted by spiderwire at 5:10 PM on August 26, 2008
I'd actually like to see a cite for that. Trademarking "Lovecraft" is potentially plausible, but you can't keep trademarks if you don't defend them, and "Cthulhu" is a nearly ubiquitous term. It's possible that they've won suits, but that doesn't necessarily mean anything -- any lawyer who lost to the Cthulhu™ argument should be ashamed.
posted by spiderwire at 5:10 PM on August 26, 2008
Sidhedevil got it right. What do you gain from opening up the threat of suit like that? You don't have to use the name to employ the mythos -- heck, I think that Hellboy is arguably a better comic for not using the name specifically. It's obvious that Mike Mignola takes a page from Lovecraft, but by not relying on The Mythos, he's able to really own the story. (And frankly, Derleth borked the entire thing anyway.)
posted by spiderwire at 5:14 PM on August 26, 2008
posted by spiderwire at 5:14 PM on August 26, 2008
You can certainly get away with a great deal -- this recent comic has Lovecraft's name in the title and freely adapts his stories (and if you read the linked article, the implication is that only stories that Marvel was sure were in the public domain were adapted, indicating that the book was not authorized by Derleth's people) -- but even if you can avoid being sued, there's still the aspect of inadvertently misleading the reader into thinking the book is based (directly) on his work.
posted by kittens for breakfast at 7:00 PM on August 26, 2008
posted by kittens for breakfast at 7:00 PM on August 26, 2008
This thread is closed to new comments.
posted by XMLicious at 12:24 PM on August 26, 2008