Using Robert E. Howard's Conan and Kull as a basis for game

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psi29a
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Re: Using Robert E. Howard's Conan and Kull as a basis for game

Post by psi29a » 18 Mar 2020, 10:11

And my quote:
Anything written before 1923 is in the public domain and can be used for a multitude of purposes, including reproducing, performing, and so on.
Was also from wikipedia. ;)

i would also argue that Trademark is "brand protection" that does nothing to protect intellectual property except for preventing others from misusing their likeness, which might be something that FOSS projects should do to prevent hostile take-overs. ;)

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Re: Using Robert E. Howard's Conan and Kull as a basis for game

Post by AnyOldName3 » 18 Mar 2020, 16:13

It is brand protection, but it's still intellectual property. It's property, because it's something an entity owns, and it's intellectual because it's obviously not a physical good.

The things you can and can't do can be approximately explained by an old washing machine. If you see an old washing machine at the side of the road with a Free to a good home sign, it's like a previously copyrighted work that's fallen into the public domain. You can take it and do pretty much what you want with it, including using it as a washing machine, selling it, or stripping it for parts. One of the few exceptions is if you take the Hotpoint badge off the front, build a new washing machine, stick the badge on and try and sell it. If you did, it would be trademark infringement, as even though you own the physical piece of plastic with Hotpoint moulded into it, you don't own or have a licence to the Hotpoint brand. With a hypothetical public domain rodent-based Disney film, you're legally allowed to reproduce copies of images and clips of The Mouse from the film, but you don't have the right to make a sign saying Mickey Mouse's Ballpit of Wonder featuring a still of his face from the film, stick it above a ballpit and charge for entry, as that would infringe on a Disneyland-related trademark for using The Mouse in relation to tourist attractions.
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Re: Using Robert E. Howard's Conan and Kull as a basis for game

Post by psi29a » 18 Mar 2020, 16:59

Aren't we just agreeing with each other here?

I said, don't use Mickey Mouse, it's trademarked for brand protection. Use Steamboat Willie, and you're safe. The mouse isn't trademarked, but his name is.

Let's salvage this thread and get back to the point, that we can use Howard's work and use "Conan" in the title even though it is trademarked thanks to prior usage.

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Re: Using Robert E. Howard's Conan and Kull as a basis for game

Post by AnyOldName3 » 18 Mar 2020, 20:15

I can't tell if we're mostly agreeing or are actually disagreeing. There's stuff in what you're writing that makes it seem like points may be being missed, but not enough to say for sure.

More of The Mouse is trademarked than just his name. His likeness, including the outline of his head, and even just three black circles that vaguely resemble his head are also trademarked. It's context that determines whether it's trademark infringement. If we made a Steamboat Willie game and put The Mouse on the box art when we sold it, that would be dicey, despite the same thing with plain black text on a white background being okay.

If Conan is trademarked, it means there's no prior usage in the same market that the trademark office are aware of. Prior use can make a trademark application be rejected or an existing trademark be voided, but it doesn't mean you can ignore it while it exists. If the holder sees we're infringing and doesn't defend it, then that's also grounds for it to be voided, so if someone says they have a trademark for Conan video games, there will be legal action of some form, and that has a nasty habit of being resolved in favour of the party with the most expensive lawyers rather than the one following the letter of the law.
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Re: Using Robert E. Howard's Conan and Kull as a basis for game

Post by psi29a » 18 Mar 2020, 20:55

https://www.startartlegal.com/new-blog/ ... lic-domain
The Mickey that will enter the public domain on that future date is different from how he exists today. Today’s mickey has two round ears, red shorts with white buttons, large yellow shoes, white gloves on each hand, a flat oblong nose, and eyes with large whites and black pupils. The Steamboat Willie Mickey is in black and white, with two dots for eyes, no gloves, white shorts with white buttons, white shoes (still large), and a slightly longer and more angular nose. It is the Steamboat Willie Mickey, and only that version of the character, that the public may be able to use in 2024.

The name “Mickey Mouse” was registered as a Trademark by the Walt Disney Company in 1933. Unlike copyright protection, there is no term limit to trademark protection. It will last until Disney abandons the marks, which will likely never happen.

If you have read the “What is a Trademark?” Blog entry, also featured on this website, you will have learned that Trademark is designed to present consumers from being confused as to the source of a good or service. A trademark is supposed to tell a customer where the product is coming from. Because the phrase “Mickey Mouse” is registered by Disney, and has been used continuously by the company for almost 100 years, it has become strongly associated with that company, providing a very strong trademark for Disney.

Trademark may prevent users in the public domain from using the name Mickey Mouse. However, it is a question of law that is not yet settled. The 2003 case Dastar Corp. v. Twentieth Century Fox Film Corp. adds an extra wrinkle. In Dastar, The Supreme Court of the United States found that Trademark cannot prevent the republishing of works that had entered the public domain. However the facts of Dastar do not include using a character with a trademarked name. Ultimately, it is an unsettled question of law. This author predicts that the question will be settled by the courts soon after 2024.

At its most basic, Steamboat Willie’s transition to the public domain on January 1st, 2024 will mean the following:

* Mickey Mouse, as he appears in Steamboat Willie, and only as he appears in that cartoon short, can be used by anyone.

* It is unknown if everyone can make use of the name “Mickey Mouse.” Due to trademark protection. There will likely be one, if not several, cases regarding this soon after the 2024 date.

* No one can claim that they are using Disney’s Mickey Mouse. Trademark protection of the word “Disney” will never stop.

Mickey will be the first character from popular fiction to enter the public domain in a long time. There, he will join the likes of Sherlock Holmes, Zorro, Robin Hood, King Kong, Hercules, Cthulhu, Dracula, and many others. Art is built upon the inspiration generated by past works. It will be fascinating to see what the world will make of Mickey Mouse.
So Steamboat Willie != Mickey Mouse as he is trademarked today; it just can't be named Mickey Mouse let alone Disney's Mickey Mouse. So along with the likes, Conan and the world presented to us by Howard is ours to explore.

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