Friday, January 23, 2015

Query Question: previous use of materials---and the Shark flips out



Years ago I started an online text-based roleplay series; basically a  collaborative story. It wasn't supposed to be a series. I had barely  started roleplaying and it was more like a test to see what running one of  those would feel like. So I didn't think too much on the fact that I was  using a couple of characters from my novel (a mere project at the time) to  build the story. The RP generated interest and spun two sequels, one of  which is still running. The world and story of the RP are unique and  completely unrelated with my novel yet I've been told that, because I used  my novel characters (name and physical description, not their story) in  the game, if I were to pursue traditional publishing I would have to  either change the characters in the book or take down the RP since it's  published online. Is this a fact?

Assuming the RP itself is not an issue. Say I sign with an agent, the  book gets picked up by a publisher and all those wonderful things I tell  myself to think of as 'near impossible best case scenarios' actually come  true. If down the road from that me and my RP buddies would like to take  the story we wrote together and make something with it along the lines of  a comic or web series (we've discussed doing it for funsies, not profits),  would those names and similarities pose an issue even if both works are  basically authored by me?

AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!!!!
RED LIGHT FLASHING!!!!!

(can you guess why?)


The authors I've seen write spin-offs or prequel shorts, or whatever else  using their characters online, however successful, were self published.  Fellow writers tell me that with traditional publishing that isn't quite  possible.

Bottom line: once a work is published the traditional way how much  freedom, if any, does an author have to play with his own creations in his  own time without it bitting him/her in the tender meat of their sitting  down area?


You're asking the wrong question.

Here's the question you SHOULD ask: "the story that my RP buddies and I wrote together" --who owns the copyright to that?

Once you have more than one person involved in the creation of a work it's no longer just yours.  It does not matter if you originated the project. It does not matter that you think of it as yours. If someone else contributed in a meaningful way to plot, character development, setting, they have rights in the work.  You can fix this by having everyone sign what's essentially a quit claim to the work, but the smarter thing to do was make sure everyone understood they were NOT co-owners at the start.

Publishers won't care if your RP game is online. In fact, they'll probably love it. More people to buy the book.

But I absolutely guarantee you that if your book is successful in any meaningful way (ie money) you're going to have people coming out of the woodwork claiming a piece of it.

You might think an easy solution is to change the names and character descriptions but if you make enough money, that won't matter. You WILL be targeted by people wanting a piece of the action.


You need an intellectual property lawyer. AND you need to sort this out before you do anything bold like sign a publishing contract. The boilerplate on every publishing contract in this universe and the next one over requires you to warrant that you are the creator of the work, and are not infringing on anyone else's copyright. Their insurance and yours will NOT cover you if you are found to be in violation of the warranty you gave.

Aren't you glad you asked?


15 comments:

Julie.M.Weathers said...

Well, that leads to an interesting question. I asked some friends in an mmorpg, World of Warcraft to be specific, if I could use their character names for some characters in my book. The characters in the books are not based on their characters in game and have no resemblance. It was just a nod to them for the years of friendship. Now I'm wondering if that might cause problems down the line.

Carolynnwith2Ns said...

Just because you're the lead singer doesn't mean the rest of the band doesn't get paid.
Tra la.

donnaeverhart.com said...

At the red letters I paused just to see if I knew - and my feeble little brain sputtered out "rights issue."

That was all I knew though, certainly not all the ins and outs of how this could impact said writer. This question simply points out, once again, the value agents bring.

But we already know that.


LynnRodz said...

The operative word here is "collaborative" story, so it doesn't belong to just the person asking the question. If there's any money to be made, it belongs to everyone who contributed to the series.

That said, I really don't see how anyone can try and claim rights to an author's novel if the author decides to change the names and descriptions of the characters. Like s/he said, the novel was just a project when they launched their RP series. Who's to say those RP characters have anything to do with the novel? And how can they prove it?

Oh yeah, I don't know if anyone else has noticed, but that universe (the one next to ours) is starting to get a little too pushy if you ask me. I'm not talking about the parallel universe next to ours, they're going about their own affairs and couldn't be bothered with us. I'm talking about the one that's perpendicular to ours. We need to keep an eye on them!

S.D.King said...

I am wondering if a disclaimer on the original RP site such as "The original concept of ____ as well as any contributions by other writers/blog commenters is the sole intellectual property of___, and cannot be blah,blah, blah" might have helped?

Julie.M.Weathers said...

Lynn,

"That said, I really don't see how anyone can try and claim rights to an author's novel if the author decides to change the names and descriptions of the characters."

That's like me saying I wrote a book about a boy wizard who goes to wizarding school and plays an awesome game of flying skidditch. My character's name is Larry Kotter, no relation to Welcome Back Kotter.

The problem with the RP games is they really are a joint effort. The dungeon master may lay out the basic premise, but it's up to each individual player to play their part. I'm going to guess the author has drawn on some of those adventures for the novel.

Now, add in the idea if this rp adventure is based on a published game and this fan fiction adventure was published, the terms of service in all these games state that characters in the games and stories posted on their forums are the property of the developer. Names are going to be kind of hard to enforce because there may be three hundred different people using that name on different servers, plus how is a game going to say, "Hey, someone published a fan fiction with the name Ruth, so it's ours now."

Would some big developer come after you if you had successful stories on their boards you turned into a novel and sold? Who knows?

I've stopped writing much fan fiction. It isn't worth the chance.

Carolynnwith2Ns said...

LynnRodz Cue Twilight Zone theme music.

Elissa M said...

Julie M. Weathers,

About World of Warcraft character names--it might be that Blizzard owns those rights. Not that they would act on it, I'm sure. You'd have to study the EULA and/or ToS to be sure.

Still, if your friends agreed to your use of their character names without further remuneration (get it in writing) you should be okay.

Colin Smith said...

It seems to me this is where the writer's energy and creativity is challenged the most. The easy way out (seemingly) would be to risk the lawsuit and run with what you (and possibly your buddies) came up with all those years ago.

The harder choice is to take that inspiration and create something new. And possibly better.

Case in point: Marissa Meyers' wonderful "Lunar Chronicals" series. This started out as "Sailor Moon" fan fiction. Marissa developed these stories, blending them with classic fairy tales, and turning them into something new and original. And while my Asiaphile daughter, who really knows her "Sailor Moon," can detect hints of what inspired the stories--perhaps a familiar-sounding character name, or a nod to a particular plot strand--she'd be hard-pressed to call foul. Because CINDER, SCARLET, CRESS, and WINTER (due out later this year) are not "Sailor Moon." Not in the least.

To our writer friend: avoid the issues and accept the challenge. Take the best of what you learned from your time developing the RP story with your friends and craft something new. Something better.

LynnRodz said...

Julie, my point was more about the questioner saying "The world and story of the RP are unique and completely unrelated with my novel..." so changing the names and descriptions seemed logical. It's completely different than having successful stories on their boards and turning them into a novel. I have to admit, though, I know absolutely nothing about RP games, series, etc.

Carolynn, thanks! Now I have do-do-do-do do-do-do-do playing in my head!

DLM said...

I'm left asking myself, what is the legal definition of "basically wrote" something ...

Dena Pawling said...

DLM – Legal Definition! Something I can help with :)

According to the Underground Legal Dictionary of Techno-Geek Slang (c)(TM)(patent pending) -

Basically wrote: proper verb clause, also spelled Basic-ly wrote, to type words and symbols on a computer keyboard in the Basic programming language. Archaic. See also: Fortran-ly wrote, Cobol-ly wrote. Modern usage: PHP-ly wrote, Java-ly wrote.

Synonyms: Basically typed, Basically keyboarded
Antonyms: Basically deconstructed, Basically deleted

*The above information is not intended as legal advice. If you desire legal advice tailored to your specific legal situation, please seek out a legal professional properly licensed in your state.
**Send legal demands for correction to 1600 Pennsylvania Avenue NW, Washington, DC 20500.
***No woodland creatures were inconvenienced by the production or testing of this blog post.
****All rights reserved.

Julie.M.Weathers said...

Elissa,

I'm not overly concerned about the names. Most of them are fairly common or with a slight twist, Dorion, Gallatin, Ardam, Recht, (Recht is a nod to Zach Recht author of Plague of the Dead who was in my guild and was a writing mentor. I asked his mother if I could use his real name.) Mikafar is a bit odd. As I said, Blizzard would have a tough time doing anything with those names, but they would howl if I borrowed game characters.

TOS and EULA do indeed state fan fiction written on boards, player characters etc, belong to the game. I actually read that bit because I'm paranoid.

DLM said...

Dena, I was so hoping you would clarify that one! And the asterisks really make the entire comment ... *Snerk* at the woodland creature reference.

Jenz said...

Lynn said: "Julie, my point was more about the questioner saying "The world and story of the RP are unique and completely unrelated with my novel..." so changing the names and descriptions seemed logical. It's completely different than having successful stories on their boards and turning them into a novel."

It may seem completely different to the guy writing the novel, but will it to the buddies who collaborated on the RPG? They might see a lot of similarities, in plot, themes, character backgrounds. I'd bet it's not hard to find something there, and the buddies will be motivated to search for them. They probably won't start out thinking in terms of trying to claim a share of ownership, but once they find a similarity, it'd be easy to become bitter if they believe they assisted this guy with the novel and now they're getting cut out of the credit.

I'm not saying it's a guarantee this will happen, but it's certainly possible enough to be worth sorting out before trying to publish.