Legality of naming a movie character in a song???

mhschmieder · Post by **mhschmieder** » Thu Nov 10, 2011 2:21 pm

Oops, good point about the game; guess it's just as well that company went incommunicado or belly-up before we could have gotten in trouble.

I guess if it isn't in the title but just the lyrics, it would be a different situation than Paul Simon's use of Kodachrome.

I'm trying to think off-hand of some examples in well known songs.

There comes a time when something enters the common use clause.

For example, there was an issue over the use of "kleenex", which many of us take as generic for facial tissue. I think it can be used in a lyric but not a title or a band name.

The Swiss punk band of that name had to change their name to Lilliput after getting sued, and miraculously were not sued by the descendents of Jonathan Swift for the new name.

But I think they might have only used one "l".

And therein perhaps lies the way out for James and others who need an obvious reference for which a substitute won't do, but aren't using it in a way that is meant to cash in on brand recognition (which to me seems the only justification for infringement).

kgdrum · Post by **kgdrum** » Thu Nov 10, 2011 3:23 pm

a bit off topic:
Recently PBS had a great Pearl Jam documentary.....

The bands original name was Mookie Blaylock,his lawyers threatened the band so they changed the name to Pearl Jam.
As a tribute to Mookie they named their debut album : 10
His uniform # lol
I guess the name change didn't hurt them.

mikehalloran · Post by **mikehalloran** » Thu Nov 10, 2011 8:57 pm

>I'm trying to think off-hand of some examples in well known songs<

Superman has appeared in many pop songs.

So did Snoopy but Charles Schultz's artwork graced the cover of the Royal Guardsmen album so one figures they had permission (my brother had the album).

MIDI Life Crisis · Post by **MIDI Life Crisis** » Fri Nov 11, 2011 7:25 am

Here's the thing with superman. It goes back at least as far a Nietzsche. Like quoting Twinkle Little Star, the preexisting material is PD or in common use. Spiderman? Old African folk tale of Anansi - but that's another topic.

daveyboy · Post by **daveyboy** » Fri Nov 11, 2011 8:00 am

Here's what I tell my clients when they talk about being worried of being sued by *fill in the blank* : "You should be so lucky to reach that kind of success!"

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MIDI Life Crisis · Post by **MIDI Life Crisis** » Fri Nov 11, 2011 9:01 am

Davyboy is right. Regardless of what you do if you ain't raking it in people won't really care too much. Profits and/or deep pockets are often the deciding factor and lawsuits are (almost) all about money.

daveyboy · Post by **daveyboy** » Fri Nov 11, 2011 10:24 am

My brothers band, Warrant, got sued for the song "Heaven" by some other band in the bay area. I remember when Heaven was written as it was way before Steve and Jani were even in Warrant. Anyway, it becomes a hit and these scum bags come out of the woodwork to try to claim they wrote it. They settled out of court just to get rid of them. "Lucky" for Warrant to get that big where that situation came up!

MIDI Life Crisis · Post by **MIDI Life Crisis** » Fri Nov 11, 2011 10:39 am

It's tough to prove that kind of infringement as you have to prove access, copying, and for criminal infringement, intent. That kind of case requires lots of $$$ for expert witnesses and research. If you successfully defend against your claim, chances are you might get those cost back but probably not.

OTOH if you're a bug enough fish, defending (or suing if you are the victim) sends a clear message that you will not cave or that you will not be scammed and settle. Such things can put a novice out of business fast but it can also get you PR and recognition that your work is good enough to steal.

The first time my work was infringed my heart sank to the floor. Ever since I pop a bottle of champagne.

adrake · Post by **adrake** » Wed Aug 15, 2012 1:28 am

If the name is public and people know about it, I don't think there would be any problem with making reference to the name on your song.

I mean, it is of public knowledge and does not automatically mean that you are pertaining to that specific character, which as you said comes from a movie.

You can work your way around it, really.

mikehalloran · Post by **mikehalloran** » Wed Aug 22, 2012 9:01 am

If the name is public and people know about it, I don't think there would be any problem with making reference to the name on your song.

It's fun to speculate but the fact is that you don't know. Neither do I.

Let's ask Black Sabbath about Iron Man (yes, I know it was a comic book character at the time) or Blue Öyster Cult about Godzilla. Or the Kinks about (Wish I Could fly Like) Superman - definitely not about Nietzsche or Shaw.

Yesterday, my wife was asking about quoting lyrics in a book she is editing. I told her that it's the book publisher's obligation to get written permission and that more copyright suits are filed over that issue than anything else (maps are the #2 category). I suggested that she advise the author to have a backup plan in case the answer is 'no' - in any case, as an independent editor, it's not her issue beyond notifying the author and publisher.

When in doubt - ask.

toodamnhip · Post by **toodamnhip** » Wed Aug 22, 2012 4:35 pm

MIDI Life Crisis wrote:Well, here's my take, JS. I am not a lawyer, but I did stay at a Holiday Inn last night...

Names are not copyrightable, but trademarks are. If the name is a registered trademark it is conceivable you could be sued, but it would only be actionable in a court of law if you are competing with the trademarked product in the same general marketplace.

For example, if you started making an orange flavored drink and named it Tang, you'd be sued. If you called your band Tang, you're probably OK. If you write a song called Liberace you're probably ok, even if it features a piano (I'm available, BTW) but if you say Liberace is playing the piano, there's a good chance his estate will sue you and win.

Trademarks are how many family members of old (long dead) film stars get around expired copyrights for screenings. You can't show the film because the trademarked image of the character appears - even though the copyright of the film itself has expired - at least that is the argument they present to the public. I personally don't think it would hold up in a court of law, but then again I'm not going to put my resources against those of the Chaplin estate to find out.

So the bottom line is that IMO as a non-lawyer but someone who's been around the block more than once on the plaintiff side of successful infringement claims, unless you are in direct competition with a trademarked name you are clear to use the name in a song. Also, titles are not copyrightable so you could (in theory) redo the Beatles White Album and use all the same song titles and get away with it - but it better be damn good!

I don't think you'd need a lawyer for this one but it never hurts to ask one about it before the song goes gold.

Well said +1

I would also add that law IS opinion.
That means that you can never be sure that some lawyer somewhere won’t decide HE wants to make a case. Especially if there is substantial money involved.
The more money the more some lawyer, somewhere will think his OPINION is you have violated law. (interesting how “opinions” are shaped by $ isn;t it?)

Be safe= don;t use last name.
Take your chances forever= use full name without permission. You might not get your answer for 10 yrs until the song becomes a hit on some tv show and you get sued.
Not because you were wrong but because some lawyer decided to try to prove you were wrong to make money.
Money drives all of this.

mikehalloran · Post by **mikehalloran** » Thu Aug 23, 2012 8:28 am

Money drives all of this.

Can I get an Amen?

MIDI Life Crisis · Post by **MIDI Life Crisis** » Thu Aug 23, 2012 11:20 am

Not from me. I agree, but remain a non-believer. How about a "yea, bro!"?

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