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Dear Alan, I appreciate the care and attention you have given to this matter. Until reading your article, in addition to thoroughly reading through all the FB and Twitter threads this morning, I had honestly not realised initially that the bulk of the argument revolved around the map I used in my books and the place names therein. I intend to address this issue specifically in a FB post today.
My first, angry and defensive responses were a knee-jerk reaction and therefore probably would have been better left unsaid. Those first reactions though were, and are solely in defence of the originality of the storyline and characters of The Witchcraft Wars. The books I wrote are completely my own work and not the plagiarised work of any other author.
Again I thank you for the time and effort you've taken to investigate these allegations. Regards, Tracey Alley
I'm glad to hear it was helpful, Tracey. While my conclusions were not positive, I did strive to be as accurate as I could, and to make it clear why I came to those conclusions.
There are some people who believe that you have written D&D fan-fiction, or that you've used characters developed by others, and that as a result your works are somehow ethically wrong. I reject that line of thinking as part of a general front granting more power to copyright holder than I think the law supports or is ethical. I know some people sincerely subscribe to that viewpoint, I just disagree. I suspect others are angry over the map, and once angry became open to just about any accusation.
I wish you the best in sorting this out.
I am glad that Ms. Alley has come around. The original allegations were very clear that they revolved around the map however. Even if some others took it further (the fan fiction allegations), Ms. Alley's reaction was what drew most people's anger. While it's very plausible that old notes and memories were what led to the inclusion of the map, place names and character names, it was also ridiculously easy for her to verify what the people were saying independently. Mystara, after all, has its own Wikipedia article. A few quick Google searches at the beginning and she would have realized that she was in fact mistaken.
Also...it does NOTHING to explain the use of the cover art. I owned the Dragon Magazine in question, I remember it clearly. And even if the cover The Kaynos History Tales was commissioned, the artist obviously used Paizo's goblin as a model. Those two things two me are more disconcerting than accidental inclusion of a map because it shows a blatant disrespect for other people's work. It's typical of the attitude, "I found it on the Internet, so it must be okay to use it."
Some of you might find the article at http://janefriedman.com/2012/10/15/qa-on-copy... and those others linked within it useful as it relates to this topic.
I think I'm one of the people who started calling it fan fiction early on. The reason is simple -- I'm a Transformers fan and over the years have seen a lot of fiction and a lot of fan fiction. The comparison I was making in my mind, while not illustrating in my comment, was that I too could come up with an entirely original cast of characters who happen to be transforming robots. There are many settings which involve such characters. But the moment that story takes place on the planet Cybertron, in the cities of Kaon and Iacon and my characters are a part of the Autobot and Decepticon factions... it doesn't matter how original my story is or how unique my characters are -- it's Transformers fanfiction and it infringes on Hasbro's IP.
Writing those stories for your own amusement is fine -- but the moment you try to base an entire career on it you've crossed the line.
And when your argument to that becomes "Well, more people have heard of Cybertron than The Kingdom of Ostland, so that makes it okay!" you fail to understand that popularity has little to do with it and both are equally protected.
There's a reason why even the third party toy makers who make their own characters that are clearly based on the Transformers property (a legal grey area in and of itself) NEVER resort to using specific names of characters, places or organizations that belong to Hasbro.
The phrase "intellectual property" can be very misleading. IP covers at least 4 very distinct areas of law which have wildly different rules: Trade secret, patent, trademark, and copyright.
Patents protect "inventions." You can't patent a name or a character. (You may be able to patent a graphic design. This is on my long list of crap that depresses me.) Completely irrelevant to this discussion.
Trade secret protects things you're told or shown after you've signed a non-disclosure agreement. Completely irrelevant to this discussion.
Trademark protects individual words, phrases, and identifying imagery. It potentially lasts forever, so long as you keep selling products marked with it. You can't generally trademark single common words, and trademarks are limited to specific areas ("toys", "clothing"), although things get wonky when you get widely known ("infamous marks"). A key element is that you need to ship something labelled with your trademark. Transformers is a trademark for the line as a whole, and there are certainly Transformers products. Optimus Prime is a trademark for an individual character who, notably, is available for sale. If there was some incidental background character who is named, but no toy or other product was branded with them, they couldn't claim a trademark. That's not to say that Hasbro might not try, but it would be easy to challenge. I happen to know the current My Little Pony, and tellingly, the major characters who have individual products are indicated as being trademarked, but a lot of minor characters are not, even when they're included in sets of toys. And it's important to note that you can potentially trademark a character's name, or even a particular image of them used for branding, you cannot trademark the entire character. End result: some of the original Mystara terms are probably trademarked. Most are probably not because there was no matching product. Hard to guess for the place names, as a lot of place names were product names for the gazetteer line. Searching the USPTO database, Ostland is not trademarked. For those names that are trademarked, it's not that you can't use them anywhere, it's that you can't use them in a way that might lead to confusion in the marketplace. (Fun fact: if someone tells you that you need to put a trademark symbol after a trademarked word or phrase just because you mentioned it, laugh in their face. You don't.)
Copyright covers particular works. Notably, individual words or even short sentences cannot be copyrighted, although the larger work containing them might be. Wizards of the Coast cannot make a copyright infringement claim because I happened to use the name "Ostland."
Now, if you build on top of someone else's setting, you enter a grey area of copyright. Where was "inspired by" end and "derivative work" begin. It's a messy area, but clearly you can directly build on someone else's work sometimes: The Harry Potter Lexicon and The Wind Done Gone leap to mind immediately. Ethically, walling off culture from reinterpretation is a terrible idea, but legally you can stop some aspects of it.
Having now read some of one of Alley's books, as best I can tell it is an original setting and story; she just used some of the names*. There can be no copyright claims. Unless the individual names were used to identify products, were trademarked, and those trademarks didn't expired, there can be no trademark claims.
* And the map. This is almost certainly copyright infringement. Fun fact: maps were one of the first things covered by copyright in the United States.
Oh and "basing a career on it" isn't actually legally meaningful. It may be the point at which a company decides to come down on you. That you might be engaging in commercial use is only one part of a four part test in the United States where all four parts must be considered as a whole.
There is also a slight difference between Trademarks and Registered Trademarks. You can claim a trademark on the mark of anything you sell, and you may be able to defend it in court. A registered trademark is a trademark you do more of the work defending upfront by registering with a federal agency. You might do this to protect yourself from a lawsuit coming from some company you aren't entirely aware of, or if someone else is using your trademark, but for a product of unrelated type (like you want to trademark a character in a set of novels who shares a name with a line of dish soap), and you want to make sure they aren't going to try to claim they have an infamous mark, or are about to publish a novel starring their soap mascot. If they don't challenge the registry before its awarded, your standing is much more secure.
Indeed, I did gloss over that.
Today's random fun fact: if you're part of the state and someone sues you for trademark infringement, filing for the trademark yourself waives your sovereign immunity. That was a fun 6 or so years of litigation...
Hello Alan, I'm returning to let you and all of your readers know that firstly, I offer a very sincere apology for my creative laziness. As many have pointed out I should have double checked my map and place names prior to publishing. That was my error entirely and one that has now been completely rectified. The Witchcraft Wars series, with an all original content and fully original characters, now also has a fully reworked map with all the relevant place names removed.
This has been a very humbling but steep learning experience for me as a fledgling writer. It is my hope and intention to have a long career as an independent author and that means making absolutely certain that I have crossed every t and dotted every i and that all material is my own.
All the artwork has also been redone although the History Tales does still bear the goblin image which I've been assured by my artist was used with permission.
I would like to thank you for your fair and balanced report of my errors. Although my fault will now be public information for years to come I am satisfied that my response in rectifying my errors will also remain in the public domain. I would hope that by admitting my fault and correcting it will ultimately do my career more good than harm. I do not want to confuse any of my potential customers into thinking I have written 'fan-fiction' or anything other than a completely original storyline now accompanied by a completely original map and place names.
Cheers, Tracey Alley
I LORD TO FLYING VIRTUAL AOPA now SIR
I LORD TO FLYING VIRTUAL AOPA now sir!
The artwork used on the cover of An Unholy Encounter was also used on a SSI / TSR video game called "Eye of the Beholder" released in 1991.
I really appreciate and delighted to read this post and comments.
My contribution is more in the form of a question, what would call Shakespeare's use of Holinshed Chronicles, one such example is Julius Caesar?
Looking forward to reading replies and insights. jrh
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