Are fictional concepts fair game?
January 30, 2012 10:18 AM   Subscribe

If I make a software implementation of a fictional religion described in a book published in the '70s, can I be subject to valid intellectual property lawsuits? YANML - understood.

I feel like this has been done, if not in software, in visual art. e.g. The selling of various fantasy posters of LOTR characters and events with those very characters and events in the title of the paintings.
posted by ignignokt to Law & Government (16 answers total) 2 users marked this as a favorite
Best answer: For starters, the fictional religion could well be protected by copyright. For example, Honda's car commercial with a "young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter" was found to have infringed a MGM's copyright in the James Bond character.

So probably the software creator would have to rely on fair use. This use certainly sounds transformative, which helps considerably. Unfortunately, without going to court, it's not possible to get a definite answer on whether it would be fair use.

Practically, there is also the question of whether the software would come to the attention of any rights holder(s), so that it slides under the radar.

Of course, none of this is legal advice.
posted by exogenous at 10:37 AM on January 30, 2012

I am an attorney, but I am not your attorney. This is not legal advice. You should consult a competent attorney in your jurisdiction.

The evaluation of whether a work likely infringes the copyright in another work (e.g. whether it uses the same unprotected idea or copies the protected expression; whether a fair use defense may apply) is extremely fact-specific and must be done on a case-by-case basis.

Anyone who has the required expertise to advise you will not do so in a public forum like Ask MetaFilter, for both their protection and yours. Again, you should consult a competent attorney in your jurisdiction.
posted by jedicus at 10:43 AM on January 30, 2012

I feel like this has been done, if not in software, in visual art. e.g. The selling of various fantasy posters of LOTR characters and events with those very characters and events in the title of the paintings.

What makes you think those various fantasy posters of LOTR characters weren't licensed from the Tolkien estate? My understanding is that they are very aggressive about protecting their material.
posted by alms at 10:48 AM on January 30, 2012

You are assuming, perhaps quite wrongly, that other existing products didn't clear their use of intellectual property with the rights holders. "So-and-so did it and didn't get sued" makes two giant unfounded assumptions---first, that what so-and-so did was unauthorized, and second, that what so-and-so did, if unauthorized, was free of consequences.

And I don't see how you could do what you're proposing without using the copyrighted words and phrases of the author.

"Fair use" isn't a bright-line doctrine in US copyright law, so you can't assure you're not in violation by counting words or similar.
posted by Sidhedevil at 10:49 AM on January 30, 2012

Response by poster: Thanks for the responses so far.

alms and Sidhedevil, I'm thinking of DeviantArt, which had plenty of Tolkien art, both for sale and not, that I'm pretty sure that was not cleared with the Tolkien estate. The same goes for paintings of scenes from video games on there.

Now, the issue in these cases just may be that they're too small to attract the attention of these companies, but I was wonder how that fit into fair use.

exogenous, that link on transformative works was very helpful. That was the concept I was trying to remember!
posted by ignignokt at 11:22 AM on January 30, 2012

DeviantArt is definitely flying under the radar of some rights holders, but not all. There have been some takedowns and lawsuits, and there will be more to come. Nobody has, as far as I know, successfully argued a "fair use" claim for the kind of thing you're talking about.

Places like DeviantArt are generally seen as fan sites too small to worry about, but when rights holders do pursue claims, the weight of the law and case law is on their side.

Please see an IP attorney before you invest time and money in this project!
posted by Sidhedevil at 11:50 AM on January 30, 2012

Note: of course DeviantArt is huge, but most rights holders are still focusing on older media in policing violations. This is unlikely to continue.
posted by Sidhedevil at 11:52 AM on January 30, 2012

(not legal advice, I'm not competent to provide it, etc)

One thing to ask, and Sidhedevil has pretty much said it, is that you can't count on other companies' success in avoiding litigation. You have no idea about them and it doesn't change your situation.

One rule of thumb is that you can do things as an economic analysis - if it's worthwhile for you to make the derivative work (your software implementation), it's worthwhile for them to go after you.

[that being said, if you're not doing it for the purpose of money, and not making money, that's a point in your favour. Maybe. It's more a rule of thumb than anything.]

In a situation like this, I would doubt that the authour would care about this software implementation, especially if you're not trying to make money. It might be worth spending an hour finding and writing them; if they agree you're golden.
posted by Lemurrhea at 2:04 PM on January 30, 2012

Response by poster: Noted. I don't plan to make any money from this and will keep in mind that a takedown notice could happen, in which case, I should be prepared to just let it go.

The author is dead, incidentally.
posted by ignignokt at 3:12 PM on January 30, 2012

Have you ruled out the possibility of contacting the rights holders?
posted by Sidhedevil at 3:23 PM on January 30, 2012

Best answer: if it's worthwhile for you to make the derivative work (your software implementation), it's worthwhile for them to go after you.

The converse may also be true -- often people who are concerned about protecting their copyright aren't particularly concerned with something until it's a large-scale problem. There are some parties who may be extra-litigious or for whom picking on you specifically wouldn't have much additional marginal cost (as opposed to the life/bank-draining experience it would probably be for many defendants), but there's a cost/benefit equation for rights holders as well: they have to figure out how likely it is your use is going to be found infringing and what they're likely to get out of bringing suit.

Since your work isn't famous, widely distributed, and possibly doesn't exist in any fixed form yet, that means you're worrying about a problem you don't have yet and don't know if you're likely to ever have. It's a bit like people who start a new website and want it to scale to support a million simultaneous users from the first rollout: scaling is a problem for websites that already *are* popular, it's a bit of a waste of resources for websites that are still on the drawing board and don't yet know if they will *ever* be that popular. Nothing wrong with looking down the road a bit, particularly if it's a small investment, but first things first.

If you know that once you've created it you'll intend to try and distribute it widely (particularly if you think you'll try to make money from it) and you want to be cautious, then you've been offered some pretty sound advice: either contact a lawyer and find out how safe what you're planning is (along with how to make it safer) or try to track down the rights holder themselves and see what they think.

If you'd rather just start creating, though, you might take note of a common convention in the arts of making something *close* to whatever it is you'd like to reference -- close enough that the essence is there for your purposes -- but changing certain surface details. See Rapture, Selfosophy, Fillory, and Buy More for recent examples. All of these things are clearly referencing the work of others (Ayn Rand, Scientology, Narnia, Best Buy) but the art keeps a certain distance by naming them otherwise and discussing what those things are about rather than them specifically.

IANAL, but I suspect that makes the prospect of going after any of the works containing these references a dicey prospect at best. And it might be better from an artistic point of view too -- it helps you think about what the essence of the specific thing is rather than the surface details.
posted by weston at 3:25 PM on January 30, 2012

Response by poster: There are some parties who may be extra-litigious or for whom picking on you specifically wouldn't have much additional marginal cost

Good point. The DMCA makes that pretty cheap.

So, I'm not going to be lawyering up or getting in negotiations with any publishing companies for this bit of folk art. I don't want this to be a Big Deal. I think I'll just keep it under the radar, even though I'm certain it qualifies as a transformative work.
posted by ignignokt at 4:15 PM on January 30, 2012

Anecdotal: When Dan Brown's "The DaVinci Code" came out, the writers of "Holy Blood Holy Grail" sued him for copyright infringement. Dan Brown freely admitted to having used the book for inspiration, but pointed out that since Holy Blood Holy Grail was supposed to be non-fiction, then the lawsuit was a tacit admission that it was not entirely fact-based. The judge ruled in Brown's favor on the same grounds. [ref]

If Holy Blood, Holy Grail were presented as a fictional work, then The DaVinci Code would not have fared as well.

A woman also sued The Wachowski Brothers and producer Joel Silver (who, incidentally, also produced The Terminator) over the Matrix because she submitted a screenplay during a screenplay writing competition that was about a futuristic savior born in a machine world. She failed to show up in court & got her case thrown out. [ref]

Why not just change the details significantly, if that's possible to still maintain the spirit of what you want to do?
posted by MesoFilter at 5:26 PM on January 30, 2012

Response by poster: It's worth trying.

It's quasi-parodic, and there would be a lot more to explain if I used generic names. I'll swap some names when I'm done and see how it goes, but I think it'll lose its charm.
posted by ignignokt at 6:07 PM on January 30, 2012

Best answer: So it sounds like your approach is going to be "I'm going to do it and try to stay under the rights-holders' radar, and if they have any trouble with it I'll take it out of circulation"? That probably isn't super-risky, though there are some highly litigious rights holders for deceased science fiction authors out there--I'd at least Google to see if other people have had trouble with whoever is currently holding the rights.

The estate of (to avoid being Googleable, I'll be circumlocutious) the writer with a Ph. D. in chemistry from Columbia best known for his works about robots tends to be very vigilant, as does the estate of the writer best known for his drug-fueled religious illuminations and for movies made from his work starring Harrison Ford and Tom Cruise, just in case either of those writers are the person who's inspiring you in this project.

Good luck.
posted by Sidhedevil at 6:35 PM on January 30, 2012

Response by poster: That's the approach. I will indeed google, read some horror stories, then perhaps cut circulation down to just my friends if it only works with the names used in the books.
posted by ignignokt at 6:49 AM on January 31, 2012

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