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My Own Vampire Novel

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Joined 2014-05-17

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Do you have any copyright on your name and the Cirque du Freak Saga that would mean it could not be mentioned in another novel? Some authors don’t like their books being mentioned in another author’s work. I wouldn’t be taking the plot or anything, but it’s about twins who love horror books. Their parents work in a hospital and blood has been going missing. Basically, the twins decide it’s a vampire and go to look for him. They stay in the hospital overnight and one of them is turned. A girl with blonde hair and blue eyes who listens to pop music and wears pink bikinis when holding summer pool parties (basically, exactly what you’d expect from the opposite of a vampire) A lot of other stuff will happen too, but your books would be referenced strongly in my current route.
If you are not okay with references to the books, I’m perfectly happy to change it.

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Over strands of red, Lord Loss crawls
Dispensing pain, despising all
Shuns friends, nurtures foes
Ravages hope, breeds woe
Drinks moons, devours suns
Twirls his thumb ‘till the reaper comes

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Joined 2010-04-30

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I usually don’t answer these, as it is ‘Questions for SHAN’; but, as someone with work experience and a massive interest in Copyright and Trademark law, I think I can field this question fairly well.

Copyright law, without getting into the meat of it, does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is original or distinctive or lends itself to a play on words, it cannot be protected by copyright. Examples of things that cannot be subject to copyright would include:

- Names of products or services;
- Names of businesses, organizations, or groups (including the names of performing groups – CDF as a circus falls in here);
- Pseudonyms or names of individuals (including pen or stage names, meaning you could mention Darren’s name);
- Titles of works (So, technically, yes, you COULD use Cirque Du Freak as a stand-alone reference, but probably not more than that – especially in a potentially for-profit endeavour);
- Catchwords, catchphrases, mottoes, slogans, or short advertising expressions. (So, technically, you could say ‘Charna’s Guts!’ and not be infringing on anything).

However; certain aspects could be trademarked, which is a whole different bag of regulations - meaning, anything trademarked has very tight rules on when and how it can be used. Generally, the use by an author of a trademark in a fictional work to describe or identify particular goods, services, names or works that are protected by copyright (So, Darren’s name is not a copyright, but his books as a whole are) will not be considered an infringement as long as the use does not confuse the reader with respect to who actually owns the trademark. Trademark law also permits an author of a nonfiction work to include content that is favourable and/or critical of a trademark owner’s product or services or names (So, you could say your characters really like/hate Darren’s or anyone else’s work). In this type of work the author should only use the trademark to describe or identify the trademark owner’s product or service and should be careful not to confuse the reader as to the actual provider of the trademark owner’s products or services or names. As a general rule, if the rights cannot be registered under copyright, it cannot be trademarked either. But - as with everything, there are exceptions to this rule. Mentioning something like ‘Mike was a huge fan of Darren Shan’s Cirque Du Freak’ in a work for profit would generally be OK. BUT - if you used Darren’s work in the context you seem to be implying above, using it as a source for your original work, using direct reference, quoting original ideas or situations that define a particular work then technically, you could be infringing on some aspect of copyright or trademark. However, if you are using it in the idea of citing a fact, then you are alright. (So saying according to this book by Darren Shan, Vampires drink blood… You’d be alright) But, if you are citing something that is not fact (Such as stating something along the lines of according to this book by Darren Shan, Vampires create more vampires by a process called Blooding… then go into detail, quoting how Darren describes it done) could be an infringement.

In short, mentioning a name, or title of a work in another work is safe, but any more than that, you could be in trouble – but there is no black and white rule. Unfortunately copyright and trademark law can be and is very gray in a lot of aspects and can take years and many experts to get anything close to a safe answer. It’s far too complex to give you a yes – go for it! Or a No – avert your plan of action. But, odds are in this case, you’d be over the rules of fair use and you would either need permission and have to pay royalties, or you would not be able to use Darren’s work as indicated in your post and you could be liable for infringement if your work is published and garners a profit of any value. If you publish it as not-for-profit, then generally, you are safe – which is why Fan Fiction writers are not hauled into courts and sued out of their pants.

If you are looking for more, then I suggest starting here - http://janefriedman.com/2012/01/23/permissions/this link has a very broad and simply formatted guide by someone with many years of experience in publishing, as to what you can use and how you can use something and if you want to use something, the general rules on how to either use it, or get the permission to use it.

You also have to realize copyright and trademark law does vary from location to location, but as a general rule, most countries follow the laws and precedents from the American policies as they are one of the most comprehensive compilations of copyright and trademark laws.

I’m by no means an expert on copyright and trademark law, but I know enough to be dangerous.

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So basically, I’m most likely to be okay if it’s not-for-profit, but could maybe get buy on a book for-profit if it was vague (mentioning title, author)but not quoting anything or going into huge detail.
EG:
I could say something like
*the twins really liked the work of Darren Shan*
*Kelly stared. “I thought you drank from the neck, that’s what happens in Darren Shan* (presumably to be followed by the vampire telling her to shut up about Darren bloody Shan)
But couldn’t say something like
*Kelly stood back. “Don’t you have to blood me? Pretty sure you don’t do… what you wer going to do.” She explained, looking terrified.
He glared at her again. “Blood is a noun. Explain yourself.”
“Well, in Darren Shan, it says a vampire must prick each of their fingers and then do the same to whoever they’re blooding. You kind of press your fingers together and the blood mixes and that’s how you become a vampire.” She replied, staring at him.
“Shut up and just relax. I can explain AFTER the deal’s finished.” He snapped, glaring as per usual.”
Oh, by the way I can’t get the link to work.

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Over strands of red, Lord Loss crawls
Dispensing pain, despising all
Shuns friends, nurtures foes
Ravages hope, breeds woe
Drinks moons, devours suns
Twirls his thumb ‘till the reaper comes

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As a general rule, yes.

As for your examples, your first one could even be pushing it. If you just said the first half, ‘The twins really liked the works of Darren Shan’. You’d be fairly safe.

As for the link, you should be able to just click on it, or copy it it its entirety and paste it into the URL bar in your browser and the page should come up.

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  ~*~Member 01’ - Mod 10’~*~
          Every post you make,
          Every rule you break,
          I’ll be watching you.

~*~13/11/2010//27/03/2014~*~