Need legal advice (easy one for the right folks)

[alsih2o]

I made a mindflayer coffeee mug- http://www.enworld.org/forums/showthread.php?p=1785983#post1785983 and someone asked if it was legal to do so.

Now, I don't see wotc coming down here and bootstomping me, but I would like to know if I am astray of the law.

 

[Lizard]

Making it for your own use? Totally legal.
Selling them? Running into very tricky ground. The distinctive image of the mind flayer is WOTC IP. You aren't copying a specific, identifiable, image, so you could claim you're making an "octopus head man" mug - there's no copyright on the concept of a man with the head of an octopus. But you could not call it a 'mind flayer', 'illithid', or 'Cthulhu' mug without risking legal wrath.

Then, we get into the issue of TRADEMARK. Either WOTC or Chaosium could claim that you are 'diluting' the value of one of their iconic images.

 

[Keeper of Secrets]

Lizard is dead on. I am an attorney who actually studied Intellectual Property law.

Your own use is always a fair creation (which is why the MP3 technology was found acceptable in court).

When you start selling an image that you do not own (I guess I would like to see the image) then you run into problems if you want to sell it. At this point that image was bought and paid for by someone else (WotC?).

Depending on your motives and your next few steps, you may want to carefully reconsider. Though for what it is worth, the rules in Europe are slightly different (favoring the artist even more). Where are you from, alsih2o?

 

[alsih2o]

Lizard is dead on. I am an attorney who actually studied Intellectual Property law.

Your own use is always a fair creation (which is why the MP3 technology was found acceptable in court).

When you start selling an image that you do not own (I guess I would like to see the image) then you run into problems if you want to sell it. At this point that image was bought and paid for by someone else (WotC?).

Depending on your motives and your next few steps, you may want to carefully reconsider. Though for what it is worth, the rules in Europe are slightly different (favoring the artist even more). Where are you from, alsih2o?

I am a 'merican. Just outside of Memphis, TN. The image of the unfired prototype mug is in the link above.

 

[Kid Charlemagne]

I was under the impression that some of the Cthulhu names were in the public domain, so a Cthulhu mug may be fine. Someone with better knowledge than I could probably confirm that.

 

[Lizard]

I was under the impression that some of the Cthulhu names were in the public domain, so a Cthulhu mug may be fine. Someone with better knowledge than I could probably confirm that.

Don't confuse copyright and trademark.

Most of Lovecraft's fiction is in the public domain, at least arguably (there's an ongoing fight over it). However, the term 'Cthulhu' is trademarked, as are the 'distinctive likenesses'.

The first Tarzan and John Carter stories are in the public domain, but if you try to make a "Tarzan RPG", you'll get your nuts sued off and handed to you on a platter by the Burroughs estate, due to trademark.

There are several different kinds of IP law - copyright, trademark, patent, and others, and which ones apply restrict what you can legally do.

Simplest advice - if you plan on doing anything commercial based on anything not entirely of your own creation and where reuse rights are not explicitly granted (as is the case with material released under GNU or the OGL) get ye a lawyer.

 

[Great Mastiff Corp.]

H.P. Lovecraft died in 1937. Therefore, the copyright on his works should have had a maximum renewal of up to 1987 (50 years after creator's death). So the Lovecraftian mythos should be public domain.

 

[Great Mastiff Corp.]

Simplest advice (which I put on a thread somewhere else here) -- just call it a "tentacle monster mug." "Tentacle monster" is nobody's copyright, trademark, or anything else. Just let the people who buy it mentally fill in "illithid", "Great Cthulhu," or what have you. No lawyer needed if you use a generic name like that.

 

[Great Mastiff Corp.]

Not to stir things up or anything, but here's the U.S. government's definition of a trademark:

A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.

This is from http://www.uspto.gov/web/offices/tac/tmfaq.htm#DefineTrademark

I'll admit that I can't see Cthulhu being a brand name in any way, shape, or form, although this may be ignorance on my part. "Call of Cthulhu" seems like a trademark. But Cthulhu seems like an "original artistic creation", which is copyrighted, and a copyright expires 50 years after the original holder's death. Now, if you called a "Chaosium: Call of Cthulhu mug" then you'd be violating a trademark. But a "Cthulhu mug" deals only with a copyright, IIRC.

However, I'd still call it a "tentacle monster mug" just to avoid legal issues and so that it will appeal to two different sets of people.

 

[Lizard]

H.P. Lovecraft died in 1937. Therefore, the copyright on his works should have had a maximum renewal of up to 1987 (50 years after creator's death). So the Lovecraftian mythos should be public domain.

It's NINETY years, currently. However, the copyright laws at the time were slightly different, requiring active renewal, and the putative rights holders let the copyright lapse. Or maybe they didn't. As I've said, there's a big brouhaha about it.

And on trademark - sorry, you're wrong. Names can be trademarked, and are. They cannot be COPYRIGHTED, of course. The use of "Cthulhu" in any form could be construed as diluting the value of the "Call of Cthulhu" game. You don't need a product called "Cthulhu" to be in violation of trademark - any use which could "cause confusion" or "dilute value" is in violation of current law. "Cthulhu" is not an "artistic expession", though the short story "Call of Cthulhu" is. The story could be copyrighted; the name cannot. (Otherwise, you could claim the name of any character in any story is copyrighted!) Names, short sayings, etc, cannot be copywrited, but that CAN be, and often are, trademarked. Trademark must be actively defended, while copyright is automatic and needs no defense. Trademarks can lapse easily, while copyrights are basically eternal at this point.

Don't believe me? Like I said, try publishing a Tarzan RPG and see how far you get on the basis that the original books are well out of copyright.