General Question

weeveeship's avatar

Would this be considered a copyright infringement or illegal?

Asked by weeveeship (4614points) September 10th, 2010

Two examples:

1. I am writing a story and would like to name one of the characters Harry Potter. However, the character has nothing to do with the wizard Harry Potter, nor is the plot anything like the Harry Potter series. In other words, there is little likelihood that any reader with common sense would construe the two as being the same. Am I violating copyright?

What if the story I am writing is realistic fiction? Let’s say I am writing about myself and my name happens to be Harry Potter (it’s not, but let’s suppose), is this copyright infringement?

2. Not sure if this is a copyright question or not, but suppose I write a story about let’s say Harry Sutter and there is actually some guy in my town named that but I don’t know him. Am I violating slander, privacy or other laws?

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25 Answers

Seek's avatar

As long as you have the “All relevance to persons living or dead is purely cooincidental”, you’re clear for #2.

I’m fairly certain the name “Harry Potter” is not copyrighted. If it is, there are about a hundred thousand people in the world who have to turn over a dollar every time they sign their name.

Jeruba's avatar

I think @Seek_Kolinahr is correct, although the best source of information on copyright law is copyright law (or a practicing attorney).

However, you can’t name a character Harry Potter and expect that a reader will make no association with the Rowling character, who is, as we know, a worldwide phenomenon. It carries all sorts of loading that you can’t escape. Unless you intend that, you would do better to avoid it.

I wrote a story set in present day in which some people who were living totally cut off from contemporary culture found and rescued a ten-year-old boy from a major city. They asked him his name and, duly cautious, he lied: jokingly he said “Harry Potter.” They didn’t react at all and just said “Hi, Harry.” That’s how he knew they were completely isolated.

If you choose anything like a normal name, you may well hit on someone’s real name. It’s pretty hard not to. You can’t do anything about that. If all your characters have unique bizarre made-up names, it’s probably not going to read like a realistic story. That’s what the disclaimer is for.

GeorgeGee's avatar

You’ve touched on several areas of law here, not only copyrights, but also trademarks and slander. J. K. Rowling is among the most tenacious of defenders of her intellectual property, so be forewarned. Naming your character even an unrelated Harry Potter will get you slapped with a trademark infringement suit, as she did for this book:
http://www.vegastrademarkattorney.com/2007/11/harry-potter-and-trademark-infringement.html
Naming your character Harry Sutter COULD get you in trouble, but chances are that Harry Sutter is less able and willing to sue you than J. K. Rowling. If he interprets anything in your book as being about his real life, or falsely attributed to his real life (“And then Harry Sutter killed the dog,”) he could sue you for slander. Then again he might not, and even if he does, he might not win. Fear of lawsuits is a bad reason not to write.

Seek's avatar

@GeorgeGee

The link you provided is a book that is plainly related to Rowling’s books, and is using their trademark images!. No wonder they’re being sued.

CyanoticWasp's avatar

Copyright law on this exact topic is pretty fluid and unsettled right now, both in the US and UK. (I don’t know much about copyright in other countries, and I’m in no way a copyright expert. I’ve just been following commentary on some recent cases and decisions, which have yet to be appealed out, and probably will be.) My reading has been in Reason magazine, but I forget which issue (in the past year).

But with that said, if your use of the name is only a small part of the story, the character is NOT ‘the’ Harry Potter (maybe you intend the kind of confusion in the story that @Jeruba suggested in hers), then you’re probably on relatively safe ground. But that’s not at all certain.

On the other hand, if you were to name a character “J.K. Rowling” (provided you include the standard disclaimer) then you’re more than likely on very firm ground, provided you don’t try to pass off your character as (or make too many similarities with) ‘the’ J.K. Rowling.

GeorgeGee's avatar

Yes @seek_kolinahr, I’m aware it was related to Rowlings books, but it has been typical of Rowlings and Warner Studios’ efforts to attack their own fans for having fan blogs/websites and such.
http://news.cnet.com/2100-1023-254289.html
One might surmise that they’d have even less sympathy for someone who ISN’T a Harry Potter fan, and be MORE likely to sue him/her for use of the name.

wgallios's avatar

I am not a lawyer so I could be completely wrong, but I do know there is the Fair use act. If you are not planning on selling the story to make any money, you might just be fine, and not even need to get any permission to use the name. I have heard of many unsigned hip-hop producers using samples of copyrighted work and not selling it just for the purpose of “learning” how to sample songs. You can read more about it on Wiki

http://en.wikipedia.org/wiki/Fair_use

http://www.copyright.gov/fls/fl102.html

Also If you are planning on having this book/story published, and selling it for profit, then perhaps it may be worth the money to simply consult an attorney real quick to find out what you can and cannot do.

DrBill's avatar

You can seperate your Harry by disclaimer, i.e.

Fred: Hi, I’m Fred Ziffle
Harry: Hi Fred, I’m Harry Potter
Fred: Like the wiz….
Harry: Don’t go there

Could be a running gag in the story

Ben_Dover's avatar

Why don’t you just call the character Perry Hotter?

Austinlad's avatar

@Ben_Dover‘s suggestion is excellent. Why take a chance?

Marva's avatar

Even if you weren’t violating any legal rights, she would probably sue you and you would have to prove it in court and pay a lot of money in the process. Which could be quite good publicityfor a book when you think of it..

BarnacleBill's avatar

You could name him Harold Potter, have certain characters call him “Harry” as a familiar name.

Ben_Dover's avatar

Harry Palmer?

weeveeship's avatar

LOL. I was using Harry Potter as an example. :)

dursus's avatar

I did a mock case in school on copyright infringement. It may help. Skip down to the last paragraph for conclusion. Here it is:

Today, we will decide whether the defendants are guilty or innocent of copyright infringement.

The defendant is guilty. The United States Copyright Act of 1976 prohibits anyone from copying the original artistic work of another, without permission. If anyone uses a part of a another’s work, even a very small part, like the one note that the defendant used, without the copyright owner’s consent, he is still infringing the owner’s rights. The maximum criminal penalty for copyright infringement is five years in prison and $250,000 in fines.

Also in Folsom v. Marsh, 9 F. Cas. 342,348 (No. 4,901)(CCD Mass. 1841) the court ruled that ”... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”

In Bridgeport v. Comb they ruled that “The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”

Those laws are only useful for significant similarities between a derivative and an original creation. The one note sample can be common in many different tracks. If it is, then the plaintiff has no right to hold copyright over the sample or require permission to use it.

In Emmerson v. Davies, 8 F. Cas. 615 (No. 4,436)(CCD Mass. 1845) the court ruled that ”... in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.“

*The United States Copyright Act of 1976 states that copyrights are only for “The designer or other owner of an original design of a useful article which makes the article attractive or distinctive ”. *

Copyright can only be claimed if distinctive, therefore I would say yes to your first question. Considering Harry Potter is a worldwide franchise and very popular, the name is very distinctive and any use of the name would violate copyright law. To your second question, it wouldn’t be a problem as long a you do what Seek_Kolinahr said.

Hope this helps.

john65pennington's avatar

Seek, you amaze me. right on the money. why not just use the name Barry Cotter and forget Harry Potter? it could be more trouble than its worth.

weeveeship's avatar

Thank you very much, dursus. @Seek_Kolinahr Thanks for the advice about example 2.

So, let me pose an example. Let’s say for Example 1, let’s say I used the name “Barry Cotter” instead. Suppos that happens to be a character in a work that is not very famous. Does copyright infringement still apply in this case?

Marva's avatar

Copyrigths are not about how famous the work is, it is about who went first to “copyright offices” and went through the procedure of protecting their rights against copying….

So if some less-known author wrote a book when the lead or last charachter is John Smith, his publisher would take care of the story being protected against theft.
Your having a diffrent John Smith participating in a diffrent story, would not be considered violating any rigths. Harry Potter, is already a brand, like Batman, there are ‘Harry potter’ products, so in this case, the actual name is protected.

Seek's avatar

You can’t copyright a name. Sure, the name is used in the book, but so is the name “Cho Chang”, and “Ginny Weasley” and a thousand others. Would you say that no one who has written or will write a book after the year 1999 can name a character “Ron” or “Hermione”? The very idea is absurd.

You can have a brand name, but that doesn’t mean no one in the world can use the words that make up your brand name again. Do you think every writer on the planet pays the Tide laundry detergent company a fee when they talk about how the moon affects the sea? No. The brand is specifically identified as a type of laundry detergent, just as the Harry Potter™ brand is specifically identifying a young adult novel about a teenage wizarding school.

Now, if the OP wants to market merchandise related to his book, he will probably have to use something other than the name “Harry Potter” to do so.

Ben_Dover's avatar

@Seek_Kolinahr Indeed. However, if the OP does market merchandise related to his book and one of the items is a Harry potter doll, it will not be copyright laws in which the OP is infringing.
It will be registered trademark laws.

weeveeship's avatar

I see. What are the rules regarding product placement in stories? I.e. Can J.K. Rowling sue me successfully if I write a story where one of the characters is a rabid Harry Potter fan?

CyanoticWasp's avatar

@weeveeship she would have no reason to. She can’t (and no sane person would want to try to) claim ownership of “fans”. What she owns is the Harry Potter™ character and ‘persona’, including the entire fictional environment. On a distantly related tangent, Walt Disney won’t try to protect every usage of the term “Mickey Mouse” (as in “what a Mickey Mouse operation this is”) because they own the character Mickey Mouse. They don’t own an adjective. However, if anyone attempts to characterize any actual people with specific references to character Mickey Mouse, Donald Duck, Hewey, Dewey and Louie, et al, then you can bet that the Disney lawyers will be writing letters right away. Serious writers generally try to avoid appropriating others’ work, anyway, so most serious writers wouldn’t even use the term “Mickey Mouse” as an adjective—it’s too cliché.

That’s why the writer has to be careful about the usage of a character sharing the same name as a worldwide icon. Sharing a name is one thing, but if the ‘new’ Harry Potter is also a pre-pubescent / adolescent ‘nice’ young man, wearing round glasses and having occult adventures… Rowling would be on that like… well, like Voldemort, I suppose.

‘Fair Use’ means that the work in question is available (generally) without specific permission, for parody, criticism, and review. And those things can be written for financial gain by other than the owner of the copyright. But once the usage starts to run into ‘new’ work, derivative characters, sequel / prequel or any other use of the original ideas and characters in the copyrighted work, then the writer takes a huge risk.

That’s why “Harry Potter fans” can be written about safely with no recourse from J.K. Rowling or her publishers—they have no rights to “fans”. Most “product placement” in works of fiction is just promotion for the placed product. There’s not much point in doing that unless you’re writing advertising copy designed as a literary work—and I don’t think J.K. Rowling needs any of us to promote her characters or stories now.

weeveeship's avatar

Thanks. The only reason I use product placement is to make the story seem more realistic. It is more realistic for me to write “XYZ gulped down some Coke and then explained how intrigued he was with the exploits of Prince Caspian in the Narnia series.” than “XYZ was drinking a can of soda and talking about his love for fantasy books.”

Jeruba's avatar

Some authors mention brand names as part of their style of realism. Stephen King does this, for example. I don’t think there is any kind of problem with it. There’s no infringement, no intent to claim ownership, and no adverse impact on the value of the product. (It’s not “product placement” unless they were induced to do it by the marketing arm of the manufacturer—that is, the marketers manage to place mention of their product by name in other media such as TV and movies.)

I supposed there could be a problem if the crime victim in your story died from ingesting poisoned Tylenol® rather than poisoned pain reliever, but that happened in real life instead of in fiction, so I don’t know what they could say about it.

Seek's avatar

@weeveeship, @Jeruba

I randomly checked out a book from the library last year, called “The Brief History of the Dead”.

In it (and I’m sorry, but spoilers are necessary for the conversation) there is a biological weapon sent into the world through (wait for it…) Coca-Cola. Kills everyone on the planet.

I still can’t find any information on whether he had to attain permission to use Coke, especially in such a negative fashion. I’d be very interested to find out, especially after learning what a huge deal it was for them to get permission to show a can of Coke in the movie The Road, even though Coke at that point was probably the single most positive scene in the movie.

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