From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include a lot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal,

Q: Can I use public & historical names for characters I intend to use in a fictional book? Example: doll A is General Patton & doll B is Tai Babalonia.

A: Juliet:
“What’s in a name? That which we call a rose
By any other name would smell as sweet.”
Romeo and Juliet (II, ii, 1-2)

Intellectual property law will not generally prevent you from using the names of historical figures. While certain figures have protected their names as trademarks in connection with specific goods or services, names alone will not be protected.

If you start to go beyond use of a name into utilizing the likeness or persona of historical figures, you’ll want to consider not only trademark but “right of publicity” law. The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona. Take a look at “right of publicity” resources on the internet and familiarize yourself with the requirements.

Hope this helps.

KLF Legal

Dear KLF Legal

Q: My Chiropractor is accused of using another companies Q & A on her website. She in fact found the info elsewhere and the page the company says she took it from is not accessible unless you know it’s there – there are no links to it. The company sent a letter demanding she remove the content AND pay them $1400 – OR she can sign up with them to provide a site redesign and hosting for a nominal monthly fee. Can they do this? She’s removed the content but is what they’ve demanded acceptable?

A: They can absolutely attempt to do that. Here are some key things she should be thinking about:

First, can she identify the location where she found the info? If so, she could prove she did not copy their work. Even if the info is identical, if she didn’t copy them, she won’t be subject to copyright penalties.

Second, not all information is copyrightable. Facts and ideas are not. On the other hand, the layout of facts is copyrightable. She might want to have a copyright attorney review the information to determine whether it’s even something that can be protected by copyright law.

As far as whether what they’ve requested is acceptable, I’ll give you an idea about copyright damages. If their work has been registered with the U.S. Copyright Office (which presumably it was prior to sending the demand letter), they could be eligible to receive statutory damages ranging from $750-30,000. If the infringement is considered willful, the award could be up to $150,000. So some level of risk definitely exists if she’s shown to have copied their work.

Hope this helps.

KLF Legal