I was wondering if you could tell me if character names are protected under copyright or trademark laws. For example, I'd like to use the name Bilbo for the family dog in my book. I do mention that the father collects Lord of the Rings memorabilia, so there is a connection/tie-in to the original source, but is this still grounds for copyright or trademark infringement?
I've been trying to research this, and everything I've found says that, unless I portray the character as a hobbit, confusing the two works, it should be OK. I also looked up the name using the Trademark Electronic Search System, and while there are a number of trademarks related to the name, those are for goods and services and not fiction.
What are the rules regarding this when it comes to fiction? Especially if the book is being sold commercially?
You can use a character name, but probably not the character.
So, the dog named Bilbo is fine. Putting in a hobbit named Bilbo, not so much.
However.
You'll see references to the actual character Jack Reacher in books written by someone other than Lee Child. Alafair Burke's Samantha Kincaid sleeps with Reacher; Lee Child references Samantha in a book as well.
This works because the intent is homage, and fun. If Lee Child had objected and threatened to sue, he would have had to show damage of some kind; that using Jack Reacher as a character confused readers who thought they were buying a Reacher book only to end up with a NOT-Reacher book. Hard to imagine anyone confusing the two authors since they have not only different names, different publishers, and different styles, but who the hell knows about lawsuits anymore.
Create a sweet, kind, soft-spoken, clean-living, temperance advocate agent who apologetically burps unicorns after eating lettuce and tofu, then name her Janet Reid, and you're going to be hearing from me in ways you won't like. It's not just cause you used my name, it's cause you used my name, job AND described me in ways that would tarnish my reputation. I mean really, BURPING?? Not to mention that other stuff. I'd be laughed out of the World Domination Cloakroom and Plotting Center if they heard I ate lettuce.
Bottom line: From what you describe, you're going to be fine.
Could have been worse. They could have had you eating kale.
ReplyDeleteIf someone wants to have a character named Michael Seese who is a brilliant author (and bears a striking resemblance to Brad Pitt) that would be OK with me. Just formally putting that out there.
ReplyDeleteI'd comment but I'm too busy cracking up at the moment!
ReplyDelete(It was the 'temperance advocate' which did it. Unicorns? Sure. You're a friendly shark, right? *runs away smartly, sure she can hear jaws snapping*)
Those of us who have met Janet know the truth of course. She is a very magical being. And her clients bleed to power her magic. No wonder Patrick Lee (nytba) looked so pale...
ReplyDeleteYeah, you thought Jeff Somers was writing fiction. The truth comes out! ;)
Reconsiders the kale eating agent to the underworld, Janet. Renames her Bosephus.
ReplyDeleteBarely dodged that bullet. Good to know.
World Domination Cloakroom and Plotting Center--I want one of those!
ReplyDeleteYou dominate the cloakroom? And what about tofu? You only mentioned lettuce, not the tofu. Does this mean you like tofu?
ReplyDeleteSometimes research is fun. Other times, it's a bit of a headache. It can seem like it's the simplest of questions until you begin to look for the answer.
Unicorn burps for breakfast. Ya know, nothing I'd have expected: but, oddly enough, that hit the spot this morning.
ReplyDeleteHuh.
Bilbo is a great name for the right dog.
HA! I'm coming back to this comment column later. So much to crack me up.
ReplyDeleteDonnaeve: whooops! Tofu is now indeed mentioned! You just missed it the first time through....
Oh, I forgot to mention, I have updated the contest spreadsheet in the Treasure Chest.
ReplyDeleteMaybe I'm speaking too soon, but this was not a particularly controversial topic. We need a flash fiction challenge to stir the comment pot, don't you think? :)
Ha, JR has a writer's soul because she can whip out those descriptions like no one else. Or maybe she's a stand-up comic in NY's underbelly. Now there's an image: a shark spouting off about woodland creatures.
ReplyDeleteOn a loosely related topic. I think I've just been threatened to be murdered in someone's book. I'm experienced at critique enough that I hesitate to critique for people when I'm not sure they have what it takes to receive a critique. But I felt sorry for someone I've seen in a group who asked for critique, and I critiqued three chapters for him. No thank you followed after another writer and I critiqued (kindly) his strange chapters. But a string of comments clearly related to our critiques and how he'd get revenge soon appeared on his feed. So maybe I'll be a famous character in a book some day. As long as the revenge is literary it's all good!
Coincidently I used Carol Reid for a character once, who guess what, was a literary agent. Not a reference to Janet I should add though.
ReplyDeleteI have a pair of Jack Russell Terriers in my book named Darcy and Lizzy. Am very relieved I won't be hearing from the estate of Jane Austen.
ReplyDeleteJenny C: Even more relieved you won't be hearing from Jane Austen herself! I'm sure it would be lovely to meet her, but not when she's mad at you for stealing her characters. Nothing worse than a salty ghost. :)
ReplyDeleteYay! (OP, here). Glad to see Fido gets to keep his original name. Some unnecessary backstory: my dad actually did collect LOTR memorabilia when he was in college, and he named his first dog Bilbo. I used the name as a placeholder in my drafts as a sort of homage to him, but I became attached to it and, honestly, can't see the dog being named anything else.
ReplyDeleteFor all you dog lovers in the reef, this is a picture of my Riley, AKA Bilbo.
And just so he doesn't get a big ego, here's what he looks like most of the time.
Thanks for answering this question, Janet, and for the anecdote about your client--I love that their characters crossover into each other's story universes.
ReplyDeleteI was stuck on a name for my best-selling author character. I'll use Michael Seese. Thanks. [I hope you don't mind that he's chosen as a running mate by the MC, Hillary Trump.]
Speaking of burping unicorns, my managing partner showed this in our office one day. Yes my boss is strange. This is possibly why I might enjoy my job.
https://www.youtube.com/watch?v=YbYWhdLO43Q
>>who the hell knows about lawsuits anymore.
Truer words have not been spoken.
Dena's link:
ReplyDeletehttps://www.youtube.com/watch?v=YbYWhdLO43Q
What about having your character reading a real best selling self help book throughout your MS? And mentioning the author by name several times?
ReplyDeleteSo, in other words, if there's a book 4 in my series I can add a slightly grumpy agent bearing your name who comes into Max's brewpub and is incensed that they only serve beer and not twelve-year-old scotch. Got it.
ReplyDeleteIn the book that starts the series I am getting ready to push I have a character named Janet Reid. She is the first person to put a bullet into the brain of the bad guy. others line up behind her to do the same if you were wondering.
ReplyDeleteShe needs to stay there because it is one of the few requests for a name usage that I got a response from. Hoe she got to that point is something I would like the Queen to read first. I already have a nice collection of shark's teeth so I don't need to spend time picking more out of my hide if she freaks on reading it.
That is yet another of the myriad reasons I have not yet queried. I need my query to be strong enough to make the Queen request a full. The character arrives in the second half of the book.
Maybe I will get there next week.
Well, pooh. I guess I better change the name of Je'treid the gypsy-like lady horse trader in Far Rider II and Janet Reid the hoop-skirted fire brand in The Rain Crow.
ReplyDeleteI despise books that are written using the characters from other author's works. Jane Eyre zombie porn queen or whatever. I refuse to buy them. I don't care how well they sell or how good the reviews are. I don't mind hat tipping to a character, but stealing entire casts of characters irks me.
Having said that, I have enjoyed the new remakes of Sherlock Holmes on television. At least the two different versions I've seen, I do. The difference is the writers didn't take the characters and completely corrupt them. They didn't turn Holmes into a sparkly vampire in a coach with six white alicorns.
Some shows and books regularly pay homage to other literary characters and it's kind of fun to look for the Easter eggs. Joss Whedon does this.
BTW, Miss Janet, you've got a spammer in yesterday's thread.
Who said Janet poops butterflies and burps Channel #5 ?
ReplyDeleteWas't me...oh yes it was.
Julie, no no! I love being a character in your books!
ReplyDeleteJeff Somers has killed me at least twice; Gary Corby has me in Singer From Memphis in a big way (Yay!!) and Bill Cameron has a character named Reid Brooks in his new YA PROPERTY OF THE STATE.
I love them all!
(no lettuce is involved in any of those books!!)
I always assumed Janet from "The Rocky Horror Picture Show" was based on you.
ReplyDeleteAgreed on the shows about Sherlock Holmes. I especially like how they home in on the psychology of the character in a way that makes the original stories come alive for me again.
ReplyDeleteSo, my Janet Reid, agent of the Underworld, shape shifter is kosher provided she doesn't eat kale? So she'll eat writer tartar instead. That ought to work.
ReplyDeleteI have a character in my series with name Weathers who is taking on some of our own Julie Weathersbrilliant persona. The Reef can't help but inspire character after all.
Ha, Lisa! I meant this sentence from QOTKU, "Not to mention that other stuff. I'd be laughed out of the World Domination Cloakroom and Plotting Center if they heard I ate lettuce."
ReplyDeleteEh? See? Only, she mentioned lettuce and tofu. So, of course I was like...but, what about tofu.
As y'all (or ya'll) can see. I have zip, zero, nada to add to this, so I'm entertaining myself.
Donna, I did notice but wondered if she had slipped tofu in after you'd posted your comment. The Shark gets sneaky that way at times.
ReplyDeleteJulieweathers-where do you find the stories and youtubes you share with us. Yes, let's clean out our colons!! What a riot. What if I want sparkles? Um, eh, not so much.
Sorry for this meandering. I obviously have nothing intelligent to add here either.
My first thought was, "You can't copyright names, but you can trademark them"... then I saw that OP checked for trademarks. So it sounds like OP has it all covered.
ReplyDeleteLettuce is evil. That is all.
Burping unicorns made me think of
ReplyDeleteThis T-shirt.
I think my next novel will feature a dashing talent scout, Lee Harper, aka Scout, in "To Kill a Mockingjay." (with his able assistant, Jim Jem, and troubled client, Greg Peck.)
ReplyDeleteIt's interesting that an author cannot use another's character by name but it seems common practice to use another's character (or a very very similar character) but changing the character's name. I don't read fantasy much, but I wonder how many hobbit-like creatures fill library bookshelves.
I see Shark Tank recommends the Squatty Potty. I wonder if Shark Tank's really - nevermind.
I can't tell my fiction from my reality.
ReplyDeleteI'm reading Stephen King's "End of Watch" which features a handheld game playing device called a Zappit that mesmerizes its users (following colorful fish - watch out for the pink one! - Zap It!)
Then yesterday all over the Web were stories about PokemonGo, a handheld game that seemingly mesmerizes its users (following colorful characters - Watch out for the pink one ! - Zap It!)
My only addition to the comment thread is that Gandalf became a bit of a fad after the LOTR movies came out. Frodo too, to a lesser extent.
ReplyDeleteSHARKS EAT LETTUCE ‽ ‽ ‽
ReplyDelete(note use of interrobang)
By the way, did you notice in the Squatty Potty ad, they used "Ben and Jerry" in referring to pooped ice cream?
ReplyDeleteLisa,
ReplyDeleteI'm not sure what stories you're referring to, but you have to remember I'm older than dirt. I have a warped sense of humor. I spawned children with the same warped sense of humor. We feed each other like a mutant plague.
I research ALOT. As such, I go down many rabbit holes. However. Dena is completely to blame for the squatty potty.
*Puts Janet back in Rain Crow.* For such minor characters, that woman and her Jewish friend have certainly taken on lives of their own and I think I detect the scent of arsenic and old lace. I'm going to have to shove them back in a box.
This is my favorite tee shirt. A flock of crows is a murder.
ReplyDeleteBunnyBear, I remember. It was great fun having a familiar character pop up in an unexpected place.
ReplyDeleteSusan, Riley looks like a sweetheart, and I can definitely see him as a Bilbo.
Julie, I love that shirt.
Good thing names aren’t copyrighted. It’s almost impossible to create a character without naming it after someone. I feel for all the real Homer Simpsons out there.
Here's a question for Janet: Has any published writer who isn't one of your clients put you in one of their novels? I think it's only a matter of time before you show up in a Jack Reacher novel. :)
ReplyDeleteJulie Weather: Awwww, is that a highland cow? Eating a carrot. And...I'm aghast. Dena's responsible for the squatty potty? Well, that's changed my image of Dena!
ReplyDeleteJoe Snow: I did notice the brand name reference.
Lisa,
ReplyDeleteYes, that's a Highland cow or maybe a bull a bovine anyway.
That squatty potty commercial makes me laugh every time I see it.
ReplyDeleteI'm reading a book right now which used the phrase, "murder of crows."
I am finally out of the woods for work due to the Sturgis Motorcycle rally coming up in the Black Hills of South Dakota - If I stay in the USFS to work, it gets really weird. No amount of money will keep me there for the two weeks prior, during and two weeks after. Weird as in naked camping people ("what about the bugs??!") and assisting unsober people back to civilization, whatever that may be.
ReplyDeleteSO ANYWAY I just got done reading JR's past posts- I will attempt to catch up.
In one WIR, JR so eloquently invites us to visit with her at the Writers Conferences she will be attending - I must admit, I was over the moon at her generosity for newbie Writer's conference people like me!
"How WONDERFUL! I MUST email her with my appreciation!!!"
In the next WIR, she admits to switching her nametag with other people at Writers Conferences.
...
...
"oh"
I think we have been given a little insight to as why her name has been used in those Novels...?
:D
Squating potting naked campers eating lettuce hailed thier dog, "Yo, Bilbo! Where in Hades is Djanet?"
ReplyDeleteDog barks.
Campers hear, "Djanet ran with the flail."
Dog barks.
Djanet returns with salad washed in fresh water creek.
"Djanet, are there minions in that salad, yo?"
Dog barks.
Campers hear: "It's time for a vacation."
Dog barks.
Donna: murder of crows is called a venery term. Those date back to the late middle ages. Almost every animal that is used for hunting or is hunted have a term for them. Some are quite complicated, like vultures.
ReplyDeleteFlying vultures are a kettle. If they are resting in tress they can be a committee, volt or venue.
A wake of vultures are vultures that are feeding.
Julie: Your rant about that editor stuck with me. Under normal circumstances I would put that off on the editor either having a bad day or is too full of himself.
Since it is about the War between the States it is different. The Civil War is still so subject to regional outlooks. People in Georgia look at it differently than people in Jersey. Don't even try to figure out how it sits in Kansas or Missouri.
Your story might have damaged the sensibilities that have tried to make it a gentleman's war rather than the bloody domestic dispute it really was. Maybe it just cut too close to the bone.
Janice: Welcome back. Yes, Sturgis is a fun time.
There was a movie (I haven't seen) called "A MURDER OF CROWS" about a former lawyer! turned writer! who puts his name on another man's book! Here's the Wikipedia Plot summary:
ReplyDeleteLawson Russell (Gooding) is a Louisiana-based criminal defense lawyer who gets disbarred for committing a mistrial. After that, he retires to Key West and decides to write a book about his experience. He suffers from perpetual writer's block while working on his book and befriends an old man who asks him to read his manuscript. When the old man unexpectedly dies soon afterwards, Russell decides to pass the book off as his, and it ends up becoming a huge success. Russell is later arrested for the real murders of five lawyers just as they happened in "his" book. He then finds himself forced to prove his innocence.
Thanks, Beth! He's a sweet soul; those eyes make him irresistible--and he knows it!
ReplyDeleteJust watched the squatty potty advert and will probably never be able to eat ice-cream again.
ReplyDeleteThe next time I'm invited over for dinner...
Friend rings: "AJ, love to have you over for dinner Friday."
Me: "Great, but I don't eat kale, lima beans or ice-cream."
Friend: "Why not?"
Me: "It's all Janet Reid's fault. She lets Reiders talk about anything."
Friend: "Who's Janet Reid?"
Me: "A whiskey-swilling, tofu-eating shark."
Friend: *dial tone*
While I concur that the use of the name Bilbo for a fictional dog of a character who collects LotR memorabilia is fine, and I can't imagine Tolkein's family or whoever owns the copyright now being at all upset, I would point out that this is America, and anyone can and probably will sue for any reason, regardless of how little legal merit the claim may have. I seriously doubt you'd be sued, and am sure you'd win. But like I said, this is America.
ReplyDelete
ReplyDeleteGlad y'all liked that Squatty Potty video! It has over 25 million views. If you watch the next video, you'll learn the company launched that ad campaign over the objection of their investors, but it paid off big time.
What Michael Seese said! You don't even have to make me look like Brad Pitt -- that would stretch the plausibility of your story like a rubber band.
ReplyDeleteA very belated congratulations to Steven D for the flash victory, and high praise to the amazing amount of talent on display in that contest. 'Twas a thrill to read them.
On topic, the thing I wondered about was if OP's story caught on like wildfire and they made merchandise tie-ins to the characters. I don't guess you could sell a Bilbo the Dog keychain or stuffed animal without the estate coming after you. On the other hand, what a beautiful problem to face!
Craig,
ReplyDeleteThe editor was trying to do a gong show thing and show how tough she was.
Once she picked up on the first "mistake" it was like a feeding frenzy. The first mistake was my description of a blue roan horse. She had to look it up to make sure there was such a creature and then pointed out my description would invite irritated letters from experts.
Then I was lampooned for thinking the MC would notice what the flowers smelled like in a cabin. No! Not with the BO not to mention chamber pots and outhouse! Haven't I done any research at all?
Rejection!
I lived in a farmhouse with no running water or electricity. It smelled like Lysol. The few times we used a chamber pot, we put the lid on it and emptied it in the outhouse first thing in the morning, which was so far from the house you can't smell it.
Anyway, I'm taking sides with the truth. If the story doesn't find a home at least I didn't whore my writing.
Joseph,
ReplyDeleteI would like to read that book.
Submission Grinder? I'll look into it. Thanks for the tip, y'all. And thank you, Your Majesty, for the idea. It's something I've been meaning to look into. I collect so much good information here, it's becoming my first stop.
ReplyDelete