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I'm planning on writing about a merc group in the not-so-far future that is named and uses nicknames in honor of the group and characters from NAMCO's PSX game Tales of Destiny.

Is that allowed if I point out both in the story ("We chose our names in honor of those characters") and in my comments that it's a TRIBUTE to them and not my property?

Or do I have to get permission from a company I'm not sure even exists anymore?

I will tell you exactly what I had in mind and why I wish to use those names... the events are taking place in the near future, but one in which, after cataclysmic events and wars, almost all of historical knowledge, art, books, all of world's cultural heritage is destroyed or inaccessible, and because of that any items recovered are EXTREMELY valuable and must be preserved, so newly installed government is trying to save what can be saved.

The leader of this merc group is fascinated with history, has huge collections of rare items (just like Nathan Never) and has named his Company and members upon his (and my own) favourite characters from tales of Destiny - the Swordians (Dymlos (himself), Atwight, Clemente, Chaltier, Igtenos and Berselius) based on their skills shared with their namesakes (Dymlos is the tactical leader, Igtenos engineer, Atwight medic, Clemente scientist, Chaltier sniper, Berselius demolitionist)...

Of course they all will have their real names (just like I have a name but my nickname is Sony ;-)). So, the story has absolutely no connection with the story in Tales of Destiny except in names the Company chose in honor of what is, like many other things in their time, forever lost and lives only in their memory and a few history books. And, to be honest, I write in first person, so I am basically writing about myself in that world, and so it stands to reason that my own likes and dislikes surface. :-)

Also, I have no problem asking Bandai namco for permission, and would really appreciate if you could direct me to the right place to ask them. I am kinda clumsy in searching for such places and usually wind up somewhere wrong, where my ideas sometimes get stolen (like in Fallout 4, but nevermind that now).

I really don't wish to make any problems for them or anyone else. On the contrary, I wish to thank them and honor them for making the (at least in my humble opinion), greatest game in PSX history (sadly VERY underrated) with depth and character development so unusual in other games of that time. I literally grew up with those characters.

They are intended to be just one of MANY characters, movies and other things mentioned and referenced to, due to the conditions that world is in (as mentioned above), but EACH one WILL be correctly named ("I couldn't believe my eyes when I found a figurine of Yoda from "Star Wars", or "it was a replica of a phaser from "Star Trek"). I believe that won't be a problem.

Either way, I HAVE to write this novel to get it out of my head, and then I will adjust it as needed. :-)

Of course, I would greatly appreciate any of your insights, suggestions, and advice. Thank you all for all help already given today and in the future.

  • Browse the other questions with the "legal" tag. Some of them are quite similar to yours. – Ken Mohnkern Aug 3 '17 at 12:43
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NAMCO is now Bandai Namco Entertainment so it does exist, although finding out who has rights may be tricky. Given the last title in the series was released in 2006 it's not too long ago that you can assume you can get away with it. see https://en.wikipedia.org/wiki/Tales_(series) Edit: Acquiring permission from Bandai Namco is probably out of your expertise and will take time, effort and eventually lawyers fees. Write your first novel.

Copyright does not exist in names, but trademarks certainly do. They may have trademarked their character names. You can search online for trademarks. Edit: But unregistered trademarks are still legal in many jurisdictions.

Also you run the risk of being accused of passing-off their characters as yours. Even if you are calling it a tribute. You've got some wiggle room as the game characters are not near-future soldiers, so it's obvious they are not the same characters (this is not legal advice).

However you can probably forget ever getting a movie deal or merchandising deal as you won't be able to provide the needed warrantees and clean title. Edit: This shouldn't be a reason to change your story. Beginners should write first, edit second, sell last.

It is always better off to come up with an original name or else generic call signs. It is easier for one character could get away with a call sign like that rather than the whole troop.

But if it's important to your story, do what your need to, especially as a first novel.

You'd struggle to get away with Capt. Chip "Voldermort" Harrington. Warner Bros and JK Rowling's Publisher's lawyers are very expensive. Edit: ...and very aggressive. But if that was the only reference and it was because he came back from the dead and had no nose then you'd probably be fine.

A counter example is Top Gun's Tom "Iceman" Kazansky. Marvel Comics may claim a trademark on Iceman, but there is enough prior art to claim Iceman refers to ice-in-his-veins rather than a superhero ice-blaster.

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My short answer would be: Don't.

Long answer: As paulzag says, you can't claim a copyright to a name, but you can claim a trademark. It's not illegal to use someone else's trademark in a story. Like if you write in your story, "Bob stopped at Walmart to buy a Coke", no one is going to sue you, and they would almost certainly lose if they tried. But if you try to use someone else's character in your story, that's entirely different. Then you're violating their trademark. One valid claim for trademark violation is that someone is creating confusion between your product and his. If I made my own brand of soft drink and called it "Coke", the Coca Cola company would have every right to sue me, because people might buy my product instead of theirs, or might decide that mine tastes awful and then not buy theirs. But if I write in a book that a character drank a Coke, no person with an ounce of rationality is going to think that my book is a soft drink. So -- I don't know anything about Tales of Destiny, but I just did a quick web search and find there's a character named Rutee Kaltrea -- if you wrote a story in which you said, "Bob really liked Rutee Kaltrea, the character from Tales of Destiny, and he tried to model his life after her", I doubt anyone would try to sue you. Any sensible reader would instantly see that you are talking about someone else's story, not trying to claim that you have any connection with that author. But if you named your character Rutee Kaltrea, and made it sound like this was a story in the Tales of Destiny universe, you would be very vulnerable to a trademark lawsuit, because then you are violating their trademark. If your stories are different enough from Tales of Destiny and it's clear that you are saying that your characters adopted these names as a tribute, you'd have a good defense in a lawsuit. But a judge MIGHT say that the case is ambiguous enough that readers might confuse your story for a Tales of Destiny story.

I think the practical conclusion is: If they cared and sued you, they can probably afford a lot of hot-shot lawyers and you can't. Even if you win, it could cost you a fortune. The practical advice is to stay as far away from any copyright or trademark violation as you possibly can. Unless there is some really compelling reason why your story just doesn't make sense unless the characters use these code names, while at the same time the story has nothing to do with Tales of Destiny, then I'd say simply: don't.

To that I'd add: Why do you think this is a good idea? Of course I know nothing about your story other than what you said in this question. Can you safely assume that ALL your readers are Tales of Destiny fans? I'd never heard of Tales of Destiny until I read this post.

In general, tying your story to someone else's story is usually a bad idea. It makes you look unoriginal. Like you weren't clever enough to think of your own character names and so you had to steal someone else's. If people like the other story, they may say "oh cool, all these references to that great story". Or they may resent you "ruining" the story. If they don't like the other story, it may just be annoying. And if they haven't read or watched it, it may just be confusing.

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I would say it is doable if they have no more than one thing in common with the namesake character. For example, in Dan Brown's novel Digital Fortress, one prominant character is named Jabba... its his nickname and like the namesake, Jabba (hence forth Jabba II to distinguish him) is so named because he is obese and works in a computer science field that has a lot of nerdy friends who almost have all seen Star Wars more times than a reasonable human has any right to see them. Beyond that, he's not a naked slug who makes his living as a don in a mafia style organization. There's a difference between the more famous Jabba and the less famous Jabba II.

The points going against you are you're doing it multiple times and the strong possibility the relations between your characters and their namesakes correlates. It's not that theme naming isn't bad... it's quite common... but the relationships and the relative obscurity of the work is not helping stave off a suit... and even while there enough differences that they could be seen as the character, that's not going to stop a lawsuit from being filed against you. The goal of the lawsuit will be to get you to stop it... or financially ruin you trying to assert your right to do so (you don't get a free lawyer when you're hit with a civil suit). I would change this so that the reference pool is broad and not related to one medium or one company that works with that media. It's much more favorable if your one use from this series is counted among the likes of Kirk, Skywalker, and Frodo... companies like when there guy is being held to the obvious other character giants of the genre.

My problem here is that they all have nicknames that are very distinct (I can't think of another instance of any of them that I have ever seen in my life) and are given specifically for their role in the story... and they are all on a team that presumably needs those roles at some point? Now, I may have never played this game, but I'm pretty versed in the ways of copyright infringement for a person without a law degree, and my copyright senses are... hang on, I got to write a check to Mickey Mouse... tingling!

It be one thing if these were characters in a bit role... they exist in a small portion of the story... and even better helped if the names were close enough without gong over... for example, in my works I routinely use the names of the Animorph's main cast for students in the same class as my main characters that are tertiary to the story at best and I always use variant names of their names (i.e. Jake becomes Jacob, Rachel becomes Rachelle, Marco becomes Marcus, Cassie becomes Cassandra, Tobias becomes Toby, and Ax becomes Phillip (helps when you know that Ax is an alien and only uses Phillip when he's pretending to be human, and even then his interaction with humans who don't know he's an alien is kept limited because he's weird on his own.). They are not part of the story and could be named anything else but that's a quick grab bag of reliably diverse names I can pull from on the fly.

A good test is the following: IF CHANGING AT LEAST FOUR OF THOSE NAMES RUINS THE OVERALL PLOT OF YOUR STORY THAN STOP WHAT YOU ARE DOING RIGHT NOW. If that is not the case, than change the four names right now so that there is less offense (and keep the name of the guy who most needs it). Copyright law can get very nuanced very fast.

Also, don't bother reaching out to the company to ask their permission... they will tell you know because, hey, they would rather not have to pay their own lawyers for the headache you caused them.

ONE MORE THING... scribbles a quick check to Jackie Chan If you don't intend to make any money off of this story, take all my advice and throw it out the window... In order to prove copyright infringement happened, you have to show injury to the copyright holder and the brand. Very hard to do that when you didn't see any money from it.

Edit:

So based on your comments, I'd like to run this suggestion by you. Since your reason for the theme naming is loyalty and comradery, there could be a way to preserve the theming but change the names to be less closely grouped. Heroes and villains alike place a lot of value on loyalty across fiction. Perhaps rather than pool your character names from one source, pool them from multiple sources and use characters you feel are exemplary of loyalty. This gives you some wiggle room to name characters across stuff, thus preventing them (especially since six in one group is hard to find... most groups tend to work in either twos, threes, or fives as a core with an occasional additional member who's inclusion messes up the established relationship dynamic). Another idea is to take the game names, and mix and match them with names of other characters who are similarly exemplify this. Also, I'd suggest that the acceptance of the nicknames on the team is varied between team members... perhaps one likes the idea but another is proud of his/her given name and outright refuses to go along with it. When you write, the former character can be addressed by the narrator by the nickname, but the latter character is addressed by the narrator by his given name (among the characters in dialog, who addresses him by which name can be mixed and varied... Consider in Star Trek: Deep Space Nine where the character of Major Kira Neirys was addressed by her sirname by almost everyone in the cast, but Odo, who was a personal friend and romantic interest called her by her given name (Kira's culture uses a Sirname Givenname format, so Kira is her Sirname. Also, that this was a development in the script as Kira outranked Odo, so he would still call her Kira when they were discussing official buisness... but called her Neirys to highlight that he's speaking as a friend and not a subordinate officer and even then, only really started once they became closer. Odo being all about order was prone to rules.).

Also, perhaps look into the nature of these names from the game and see where they derive from. Again, I haven't heard them, but if you can get a close but similar naming, it might be a good way for your nickname giver to be a little clever about it... he's preserving the name, but demonstrating he has scholarly command of the product by choosing names you'd have play the game or research the backstory of its creation to properly understand. This can allow you a bit more freedom with acknowledging the work because now you can discuss why the name is relevent to the team, which in turn informs the reader about some of the more intiment details about why you love the game (It doesn't have to be the nicknamer either... another member of the team could reveal he or she knows the name's significance because she's read his paper(s) on the work of art, which the other person has read prior to joining the team and showing unique insite into the name).

Speaking from personal experience, I do enjoy Shakespeare, but I never would have read the Bard if I hadn't first watch Gargoyles, which among other things, showed several of Shakespeare's characters as real characters that the Gargoyles could interact with (it's MacBeth character is actually closer to the Historical Scottish King than it is to the one featured in the play... whic not only makes the viewer want to go read the play, but also enjoy it because it's different enough to be a new story). It can also work if the name helps to show differences in the character from the homage character (why did I get this name? I don't represent it... Well, here's my thinking). One of my favorite Avatar: The Last Airbender episodes is the season two "Zuko Alone" which puts Zuko in the role of Shane from the classic Western film and novel of the same name. Here there are some differences... In Shane, Shane is not the viewpoint character of the story... a good chunck of it is about the other characters learning about who Shane is. In Avatar, Zuko is our viewpoint character and it's the farmers that take in Zuko who are. Avatar and Shane also feature a critical difference in that at the end, Shane hasn't revealed much of his past, with the few hints that we get being that it may not have been a savory one, but that doesn't matter because his actions in the present prove he's a good person. In Avatar, Zuko does reveal more, which results in a dramatically different reaction to essentially the same actions.

There are a lot of ways to go about this that take it from something the rights holder would sue over to something that the rights holder respects because it shows respect for the work... by widening the gap of the nicknames, you can better discuss your appreciation of the work because now it's respectful enough to be its own work and not a pale immitation.

There's a great video by an online reviewer called SFDebris that discusses the difference between homage and plagerism... his basic premise is that all works of fiction do not exist in a vacumme... its okay to borrow ideas from other works, as long as you impove upon them... and shows the chain of evolution in the popular phrase "The greatest trick the devil ever played was convincing the world he didn't exist" to highlight homage and plagerism.

Also check out the Doug Walker's video "Where's the Fair Use" (a.k.a. #WTFU and yes, the acronym was intentional) where he describes the living hell that people who are trying to protect their copyrights have put him under for his popular web series "Nostalgia Critic" as well as other internet reviewers even though under Fair Use laws, which cover works critical of other works, Walker and his other guests did nothing wrong... in one case, one guy never bothered to show a clip of the discussed work and got hit with copyright infringment charges. It's just another way to highlight that while this most likely intended as tribute, if a company doesn't see it that way, they can be extremely agressive in their defense, even when you are doing nothing wrong (they are banking on you being an up and coming author with nothing in terms of money forcing you to either cave or bankrupt yourself in legal fees trying to pass it off. In many cases, even if you prove your case that the work is not illegally using someone else's copyrights, the courts aren't automatically going to give you compensation for your effort unless it's so blatant an abuse of the law on the claimant's part). Keep in mind, when D.C. comics sued Fawcett Comics over the similarity between Superman (D.C.) and Captian Marvel (Fawcett) the case dragged on for a decade and Fawcett was under Cease and Desist for that entire period on what was at the time, the best selling title in the genre... and considering how profitable Superman has always been, that's a lot of money.

  • actually the names are not that important... i can easily change them but the point of using them is: - First and foremost, i LOVE that game and those characters and wanted to make tribute to them -second, i can't think of another group of six members so loyal and attached to each other like swordians - Third, i wish, exactly because the game is mostly unknown, to make the people aware of it... even old, it's still a LOT better then most modern games (at least in my modest opinion) oh and i HAVE to write that novel before it drills a hole in my head ;-) – Andrew Kain Aug 4 '17 at 7:09
  • oh and i plan to use a LOT of references to many other comics, books, games and movies not just this one game ( like quoting - "god loves man kills" -XMEN) ...the whole point of the story is that almost everything referenced to is destroyed in that world, and only a few bits and pieces remain – Andrew Kain Aug 4 '17 at 7:15
  • @AndrewKain Edited to give some more advice. – hszmv Aug 4 '17 at 13:01
  • "you have to show injury to the copyright holder and the brand" - that mainly applies to USA copyright with regard to punitive damages. Copyright is very country specific but the overall the Berne Convention applies. The poem I wrote in 4th grade is covered by copyright. hmmm I really should upload it to copyscape to see who stole lines from it. – paulzag Aug 9 '17 at 0:46
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    @paulzag: True. It's the laws I know and pretty major as it's a major media consumer market. It also is to provide specific possible cases to look into in foreign cases. – hszmv Aug 9 '17 at 15:21

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