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

OpenMW's very own demo, template and game to show off everything that OpenMW is capable of.

Moderator: Example suite forum moderator

User avatar
psi29a
Posts: 4907
Joined: 29 Sep 2011, 10:13
Location: Belgium
Gitlab profile: https://gitlab.com/psi29a/
Contact:

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. ;)

User avatar
AnyOldName3
Posts: 1913
Joined: 26 Nov 2015, 03:25

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.
AnyOldName3, Master of Shadows

User avatar
psi29a
Posts: 4907
Joined: 29 Sep 2011, 10:13
Location: Belgium
Gitlab profile: https://gitlab.com/psi29a/
Contact:

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.

User avatar
AnyOldName3
Posts: 1913
Joined: 26 Nov 2015, 03:25

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.
AnyOldName3, Master of Shadows

User avatar
psi29a
Posts: 4907
Joined: 29 Sep 2011, 10:13
Location: Belgium
Gitlab profile: https://gitlab.com/psi29a/
Contact:

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.

unelsson
Posts: 184
Joined: 17 Mar 2018, 14:57

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

Post by unelsson » 24 Apr 2020, 22:06

It's true, it's important to think of the words we use, if we are referring to Conan the Barbarian or any other PD-content. I can strictly speak only of Finnish (EU) law... but..

It's good to note that "concept copyright" does not exist. It's true that the copyright extends further than just the name, but you can't copyright curves, dots, talking rodents, stories where all people are animals with clothes etc. Trademark law concerns the stuff related to the trademark, copyright law is all about the content, and when this interferes with Mickey, it's indeed a can of worms, I can only argue how it should be (I'll do that in next paragraph).

There's absolutely no sense if PD works can be trademarked. Companies would trademark everything that's PD, from Gilgamesh to Shakespeare. You couldn't use any PD works anywhere, ever. If that happens, we need to break that law through means of civil disobedience until the end of time.

Conan the Barbarian (the one in Howard's work) is PD, and isn't trademarked, and can't be trademarked, because it conflicts with copyrights. This is absolutely the case in Finland (EU), but I believe this is also the case internationally. A trademark like "Conan video games" is almost certainly against the law, as there is a significant risk of confusion with Conan the Barbarian, and even if it were accepted, you could still use Robert E. Howard's Conan the Barbarian, but probably should take care on wording (e.g. don't say that this is "Conan video game", but say that OpenMW's example suite is a video game based on Conan the Barbarian). Of course, people can sue you for whatever, but you have to base actions on the principle, that by doing legal stuff you wont be in trouble.

edit: The term "concept copyright" is a bit difficult term, and might be misleading here. What I mean that you can't copyright wider concepts, or general concepts that you have in your work. You can copyright the actual stuff, including visuals, text, etc. but you can't go any wider than that, copyrighting things that "kinda feel like same". There are also different interpretations on this worldwide, making this even more difficult.

User avatar
AnyOldName3
Posts: 1913
Joined: 26 Nov 2015, 03:25

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

Post by AnyOldName3 » 24 Apr 2020, 23:43

The key thing with trademark applications (if the system worked as stated, which it doesn't always) is prior usage. There wasn't prior usage of Mickey Mouse before Disney, so they can trademark it, and then can keep exclusive usage of that trademark indefinitely if they don't do anything to lose it.

Once Steamboat Willie becomes public domain, you still won't be able to create your own movies with a 'confusingly similar' mouse name in the title (or anything else the trademark has expanded to). If, somehow, Disney hadn't trademarked the name by accident, once the film went public domain, they wouldn't be able to trademark it, but the thing stopping it would be that someone else would have started using the name for something else in the intervening years in an attempt to capitalise on Disney's omission.

If I were the sole descendent of the author of a bunch of books that were technically published a century ago, so were public domain, but no one had heard of them or the author or actually bought a copy, I'd be able to trademark the author's name and the book titles (unless someone with a similar name or book title had come along in the intervening years without knowing). There'd be no prior use, so nothing stopping it. It wouldn't be much good, though, as anyone else who then bought a copy would be able to reproduce it and sell it under its original name as it's literally the same product, not just something 'confusingly similar'.
AnyOldName3, Master of Shadows

unelsson
Posts: 184
Joined: 17 Mar 2018, 14:57

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

Post by unelsson » 25 Apr 2020, 10:31

As I said, I can only speak of Finnish law, which should be in accord with conventions used in the EU. There is a clause stating that it's a reason to consider cancelling a right for trademark, if a trademark violates an earlier copyright. I don't know of any judiciary decisions with this, so there might be leeway here. What you are referring to "the thing stopping it would be that someone else would have started using the name", is similarly also grounds to cancel a trademark.

Ferk
Posts: 36
Joined: 08 Sep 2013, 20:27

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

Post by Ferk » 25 Apr 2020, 20:33

AnyOldName3 wrote:
24 Apr 2020, 23:43
If I were the sole descendent of the author of a bunch of books that were technically published a century ago, so were public domain, but no one had heard of them or the author or actually bought a copy, I'd be able to trademark the author's name and the book titles
I don't think that would be much of a problem. I expect the idea would be to borrow the lore, not the exact titles of the books. Conan himself doesn't necessarily need to even be mentioned, I'd expect.

Anyway, there are many other universes that are definitely open as well. For example, Greek and Roman mythology have quite a bunch of monsters, creatures, gods, heroes and exotic locations. Could even take inspiration from real world ancient Greece and Italy for the map and towns.
Or if you want an even more ancient and exotic culture, you have also a lot of lore by looking at Egyptian mythology and could mix in necromancy like they did in The Mummy movies or some ancient aliens like in Stargate just to spice things up.

Still, imho, it would be a more attainable goal to try and start simple, the lore is more of a big picture thing.
I still think porting some other game that's already open source might be easier for a start. I already suggested "Wastes Edge" in the past, but if you think that's too dialogue-based, I recently tried out "Shadow Over the Twelve Lands" and it might be a good inspiration for an adventure, it's also open source, the author even made a worldmap of his game world: https://drive.google.com/file/d/1-9d8MZ ... vp_zd/view

User avatar
AnyOldName3
Posts: 1913
Joined: 26 Nov 2015, 03:25

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

Post by AnyOldName3 » 25 Apr 2020, 23:42

That specific comment about using an ancestor's name was due to something that was said via discord, so is more relevant to that than to the conversation in general.
AnyOldName3, Master of Shadows

Post Reply