Can Game Titles be Copyrighted?

[watermark]

A hypothetical question I was thinking about. Say I want to name my game oh "Lord of the Rings" and the game has absolutely nothing to do with the characters or setting of this classic. There's no orcs, there's no dark lords, there's no hobbits. In fact, it's a game about magic ponies getting new colors for their new rainbow, for example.

I mean, "Lord of the Rings" is obviously copyrighted in the copyright office (it's got pages and pages in the database). However, a search on U.S. copyright law states that titles cannot be protected by copyright.

So would this be infringement?

 

[Andar]

Yes - trademark infringment


Trademark is for protecting names and catchphrases, copyright is for protecting full works - and you need to follow both sets of rules, even when they're lumped together by people who don't understand the difference.

 

[metronome]

Hmmm.

"Lord of the Ring" is too obvious. It is trademark infringement.

What about "Angels" or may be something like "Spoon", "Evil", "Cars", "Scream",etc?

Could game title based on generic word be copyrighted? There must be some rules about this....

 

[Bribolox]

Trademark laws are there to protect corporate entities - so you couldn't use "Lord of the Rings" or "Final Fantasy", for example.

However, you couldn't apply trademark protection to a word or phrase just because you don't want anyone else to use it. 

It would have to be detrimental to you or your business if someone else used your title or name.

Here's a link about the subject: https://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

 

[deilin]

In some cases there are. There are many movies and even music out there with the same name that have nothing to do with each other.


For example: Frozen.


While now a disney movie based off of Hans Christain Anderson's The Snow Queen, it is also a movie bases on 3 people who get caught on a chairlift overnight during a blizzard.


Time is a factor, as well as story/theme. A lot depends on how threatened someone who holds a trademark, or copyright, feels as well. "Lord of the Rings" probably would be defended. Though, there have been TV and smaller movies with the same name released that have nothing to do with the Tolken series.


The company I work for bought out another company, but couldn't change the name of the stores in one city because another company already had a similar (but not the same) name. After 2 years, the company I work for paid the other company to change one word from their name, so they could rebrand the stores they bought.

 

[GrandmaDeb]

Good Articles:


http://www.copylaw.com/new_articles/titles.html


http://www.writersdigest.com/online-editor/can-you-use-a-book-title-thats-been-used-before

 

[EternalShadow]

Trademarks have to be more than one word. Frozen, for example, cannot be trademarked. Monkey Island is, as we know from ingame xD

 

[Andar]

There are rules about trademarks, but unfortunately a lot of things are left to the courts, and sometimes even judges misunderstand the system.


For example while trademarks need to have more than one word to be registered, having one of the words used in a different context is sufficient for a chance to get sued.


To keep the example above, while the trademark needs to be "Monkey Island" and cannot be "Monkey" alone, if someone else makes a game "Monkey Tower" then this is enough to allow a law case of possible infringment, especially if the "Monkey Tower"-Game is also about pirates or the caribean islands.


Sorry - those laws are murky, and there are a lot of people who use that murkiness to make money, so you're always better off to make your own names.


Do not even try to make a title similiar in hope to gain some fans, because that will be seen as trademark infringment as well.

 

[GrandmaDeb]

"so you're always better off to make your own names."


I'm sorry, but I have to respectfully disagree, Andar.


There is a trademark search http://www.tmquest.com/ which allows you to look up that "Lord of the Rings" is in fact trademarked. If you look you will see that the trademark is registered in many, many ways. For example, it is trademarked as a jewelry and costume sales company.


It is probably trademarked as a video game; I didn't check.


But if I were choosing a name for my game, and I liked the name, and then I found out it was trademarked as the name of a reality TV show (instant loss of respect!) and not at all about the content of my game, I would not in the least want to change my game name due to trademark issues.


Creativity thrives not only because we respect copyright and work for the crediting and observance of artists' terms, but also because creative endeavors are given room to grow.


If international laws are too restrictive, then I would only share my game where laws did not interfere.


And I would never steal from J. R. R. Tolkien. =]

 

[Clord]

This is how it works in my country.


Names must have more than one word to even stand on the court. Common words generally can't be trademarked.


Copyrights are free as they are applied automatically. Many confuse them with the trademarks.

 

[EternalShadow]

There are rules about trademarks, but unfortunately a lot of things are left to the courts, and sometimes even judges misunderstand the system.

For example while trademarks need to have more than one word to be registered, having one of the words used in a different context is sufficient for a chance to get sued.

To keep the example above, while the trademark needs to be "Monkey Island" and cannot be "Monkey" alone, if someone else makes a game "Monkey Tower" then this is enough to allow a law case of possible infringment, especially if the "Monkey Tower"-Game is also about pirates or the caribean islands.

Sorry - those laws are murky, and there are a lot of people who use that murkiness to make money, so you're always better off to make your own names.

Do not even try to make a title similiar in hope to gain some fans, because that will be seen as trademark infringment as well.

This happened with The Banner Saga and Candy Crush Soda Saga, but them sharing the aspect of being a game was what got everyone riled up - if one was a book, and one a game, I'm pretty sure there would've been no legal precedent at all. I however, find the concept of using a single word in your trademark ("saga") to try to claim trademark cases against other things that share that single word - even if they have nothing to do with the game that originally trademarked the original word - abhorrent!

 

[TherainED]

I am going to answer two questions here.

Mainly, I want to state that what Andar said it's true as much as I don't like it...to a certain point.

While it's true there is a lot of people that will use the murkyness of Copyright and Trademarking laws to get money, I don't think there's going to happen anything similar to you. You are not an interesting target, suing you would mean a loss of money by the part of the demmandant unless you have some kind of super secret cache of thousands of million dollars, which I highly doubt. Ultimately, you wouldn't recieve any legal backlash from any Tolkien or big companies' representatives.

The backlash would come from the public.

And, gods forbid, it could get to the ears of someone that could actually sue you. A company small enough to be able to gain something out of a copyright/Trademarking infringement claim.

Whether you want to do it or not, it's your call. Just think about what you'll gain and you'll loose and try to make some kind of balance to see if it's worth it.

PD: And don't even think about selling it. THAT would get you into some fricking trouble.

 

[amerk]

But if I were choosing a name for my game, and I liked the name, and then I found out it was trademarked as the name of a reality TV show (instant loss of respect!) and not at all about the content of my game, I would not in the least want to change my game name due to trademark issues.

Perhaps, but as Andar said:

There are rules about trademarks, but unfortunately a lot of things are left to the courts, and sometimes even judges misunderstand the system.

There is very little that prevents anybody from filing a lawsuit when they feel another work infringes up their own rights, and it takes money and resources to fight the suits, even if you feel you were never in the wrong. Granted, if the court sides against the company filing the suit, they may have to cover your expenses, but the road to that point can still be costly, and there isn't a guarantee on how the court will even decide. Probably the most recent, and perhaps best example is Chick-fil-A's lawsuit against Bo Muller-Moore in what they felt infringed on their advertising catch phrase:

From Wikipedia:

Spoiler

"Eat mor chikin" is the chain's most prominent advertising slogan, created by the The Richards Group in 1995. The slogan is often seen in advertisements, featuring cows that are often seen wearing (or holding) signs that [usually] read: "Eat mor chikin" in all capital letters. The ad campaign was temporarily halted during a mad cow disease scare on January 1, 2004 so as not to make the chain seem insensitive or appear to be taking advantage of the scare to increase its sales. Two months later, the cows were put up again. The cows replaced the chain's old mascot, Doodles, an anthropomorphized chicken who still appears as the C on the logo.[13]

Chick-fil-A vigorously protects its intellectual property, sending cease and desist letters to those they think have infringed on their trademarks.[14] The corporation has successfully protested at least 30 instances of the use of an "eat more" phrase, saying that the use would cause confusion of the public, dilute the distinctiveness of their intellectual property, and diminish its value.[15] A 2011 letter to Vermont artist Bo Muller-Moore who screen prints T-shirts reading: "Eat More Kale" demanded that he cease printing the shirts and turn over his website.[16] The incident has drawn criticism from Vermont governor Peter Shumlin, and has created backlash against what he termed Chick-fil-A's "corporate bullying."[17]

On Thursday December 11, 2014, Bo Muller-Moore announced that the U.S. Patent Office granted his application to trademark his "Eat More Kale" phrase. A formal announcement of his victory took place on Friday December 12, 2014, with Shumlin and other supporters on the Statehouse steps. His public fight drew regional and national attention, the support of Shumlin, and a team of pro-bono law students from the University of New Hampshire legal clinic.[18]

Bo was able to win against this suit, but likely he either had the resources and money to follow it through, or at least had someone who was willing to hlep him free of charge because of the high profile nature of this case, but others may not be so lucky and may even be bullied into dropping the phrase even before a suit is ever filed.

 

[GrandmaDeb]

As someone who has been sued, I am very aware that you can sue or be sued for anything.


Anything.


My lawyer (an intellectual property rights lawyer who graduated from a very good school and owns a very good practice, btw - I just happen to know him from other contexts, lucky me) says, it does not matter what is true, it matters what you can prove in court. It does not matter what is right, it sometimes matter more which judge happens to be the judge you get. And it does not matter how far your rights extend, it matters how far you are willing to (pay to) enforce them.


We can respect the law and live within it and still enjoy the freedom intended by what it permits. I prefer to live that way.


And yes I could have easily lost everything I owned. And yes it cost a lot. And yes, btw, the people who sued were full of bal*ney.


As this is an official site the mods feel a responsibility to warn folks. I respect that. I just think we should also remember the liberties we have.

 

[amerk]

As someone who has been sued, I am very aware that you can sue or be sued for anything.

Anything.

... it does not matter what is true, it matters what you can prove in court. 

And there lies the problem. There is no intitial check in place before allowing a lawsuit to go through. If a lawsuit could be judged on its merits first, this would probably prevent the money chaser trying to work up a scam, and costing innocent folk their hard-earned wages. But that's outside of the scope of this discussion. There really is no right / wrong answer to this topic, since rules are in place for copyrights and trademarks but as others pointed out is murky and often left up to interpretation, and mods and members can offer advice and point out examples, but it really ends up being a case of risk versus reward, and ultimately depends on how a company who holds a similar name will react (if they wish to file suit), how good of a lawyer you may have, and how a judge will rule (if taken to court).

 

[GrandmaDeb]

good summary.

 

[watermark]

Thank you all for the comments. It has been most enlightening. I think I shall think of some other name.

This really came up when I wanted to make my next game called "Sapphire Rose". It's about a knight getting a sapphire rose to save his princess, and the blue rose idea really came from that old, old movie "Thief of Baghdad".

Just to be careful, I did an Internet search and lo and behold, Mr. David Eddings already wrote a book called "The Sapphire Rose" and it's also about some knight saving some damsel with a blue rose. Oh gee, I guess great minds think alike. Now, I have only read his Belgariad (I do love that series btw), and knew he wrote something called the Elenium but never really looked into it till now. 

I really liked the name Sapphire Rose. And it was totally made up by me (and I thought it was original at the time, sigh...). But after reading about it here, I think I shall try some other name to avoid the unnecessary controversy.

 

[Ralpf]

Thank you all for the comments. It has been most enlightening. I think I shall think of some other name.

This really came up when I wanted to make my next game called "Sapphire Rose". It's about a knight getting a sapphire rose to save his princess, and the blue rose idea really came from that old, old movie "Thief of Baghdad".

Just to be careful, I did an Internet search and lo and behold, Mr. David Eddings already wrote a book called "The Sapphire Rose" and it's also about some knight saving some damsel with a blue rose. Oh gee, I guess great minds think alike. Now, I have only read his Belgariad (I do love that series btw), and knew he wrote something called the Elenium but never really looked into it till now. 

I really liked the name Sapphire Rose. And it was totally made up by me (and I thought it was original at the time, sigh...). But after reading about it here, I think I shall try some other name to avoid the unnecessary controversy.

That sounds like a good plan, almost the same name with similar stories is asking for trouble I think.

 

[Sharm]

I've read the book, it's not actually a rose, it's a magic gem made to look like one.  You're most likely safe.

 

[Caitlin]

Just remember that Sony owns the trademark for PLAYSTATION, but not the trademark for Play Station, which Nintendo owns.  There was a huge case about it.  So, if you have a commercial product, I would consult an attorney.