Dear dtnl42,
A fictional character may enjoy legal protection in three areas: copyright
law, trademark law, and unfair competition. Before I describe how each
one applies to the particular case of Humpty Dumpty, let me refer you to
an article by intellectual-property lawyer Lloyd L. Rich that discusses
these protections in general terms.
"Three distinctive bodies of law -- copyright, trademark and unfair
competition -- provide overlapping protection for a fictional
character. [...]
"Copyright law will only protect the characterization of a fictional
character if the character is portrayed in a copyrighted work. [...]
"A fictional character, similar to a graphic character, cannot
obtain trademark protection for its own protection, but may only be
protected when the trademark indicates a particular source of goods and
services. [...]
"A fictional character's "name" may be a trademark if the character's name
is used as a title of a book, movie or series and therefore indicates a
single source of the entertainment product or service or it is used on
other then entertainment goods or services. [...]
"Many courts have permitted various aspects of unfair competition
law to protect fictional characters. However, as with trademark law,
unless a fictional character is used wrongly in a commercial context,
it is unlikely that unfair competition laws would provide protection
for the fictional character."
Publishing Law Center: Lloyd L. Rich: Protection of Fictional Characters
http://www.publaw.com/fiction.html
Consider the matter of copyright. Recent works remain under copyright for
70 years after the author's death, 95 years from first publication, or 125
years from creation, depending on whether the author is identified. Older
works are protected at most 56 years beyond the date of publication.
"The copyright in a work created by one or more people lasts for seventy
years after the last surviving authors' death. For works for hire,
anonymous and pseudonymous works, the copyright term is ninety-five
years from first publication, or one hundred-twenty years from creation,
whichever is shorter. [...]
"For works published before January 1, 1978, this question gets a
little trickier. Generally speaking under previous law, a copyright was
secured either on the date of publication or a work, or the date the
work was registered in unpublished form. In both instances, the term
of copyright was twenty eight years from the date the copyright was
secured. Thereafter, the copyright could be extended for a second term
of twenty eight years if a renewal was applied for within the last year
of the first term."
LawGirl: Copyright: Duration
http://www.lawgirl.com/copyright.shtml
The Humpty Dumpty rhyme was first published in 1810, so its copyright
expired in 1866 at the latest. Even under the newer copyright laws,
it would be in the public domain for some time now.
"Although it first appeared in print in 1810, the rhyme is certainly
older, but how much older is a matter of dispute. The Oxford English
Dictionary gives Humpty Dumpty as the name of an ale-and-brandy drink of
the late 17th century, and also as 'a short clumsy person of either sex.'"
Straight Dope: Why is Humpty Dumpty portrayed as an egg, even though
eggs aren't mentioned in the nursery rhyme?
http://www.straightdope.com/mailbag/mhumpty.html
Now to the question of trademark. There is the Humpty Dumpty brand of
chips, for example, the name of which has been registered as a trademark
in the U.S. and Canada.
Canadian Enterprises: Humpty Dumpty Snack Foods Inc.
http://www.canadianenterprises.org/humpty/
However, a trademark offers protection only within the realm of goods
or services for which it was registered. Despite the Humpty Dumpty
trademark on chips, you are free to name an airline Humpty Dumpty if you
so wish, and even to register a trademark for this name in connection
with airlines. The U.S. Patent and Trademark Office's search system
shows three other live trademarks named "Humpty Dumpty", but these
are registered for toys, socks, and canned seafood, thereby causing no
tension with one another or with Humpty Dumpty chips.
United States Patent and Trademark Office: Trademark Electronic Search System
http://tess2.uspto.gov/bin/gate.exe?f=login&p_lang=english&p_d=trmk
In any event, Humpty Dumpty could not be trademarked like Tarzan as a
device for selling books, because a trademark requires uniqueness in
its field of application. There is nothing unique about the literary use
of Humpty Dumpty, who has been around so long that in the 19th century,
61 years after the rhyme was first published, the character reappeared
in Lewis Carroll's Through the Looking Glass without any legal risk to
the author. For the same reason, you cannot be accused of unfairly using
Humpty Dumpty in a commercial context just because you have included
the character in your fiction.
Sabian Assembly: Through the Looking Glass: Chapter 6
http://www.sabian.org/Alice/lgchap06.htm
I have enjoyed researching this question on your behalf. If you have any
concerns about my answer, do let me know through a Clarification Request.
Regards,
leapinglizard |
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