Legal Question in Intellectual Property in California

Re: Are ''unofficial'' guide or commentary about copywritten material free from

In your situation, you are not �free from laws� but you likely have a good defense against any claim of infringement. Observations and commentary of copyright protected material that you describe likely falls under Sec. 107 (see below) of the copyright act, which details what is �fair use� of copyrighted works. Uses such as criticism, comment, and news reporting are considered fair use. Please note the fair use doctrine can be quite complex, and similar situations may have differing results when the doctrine is applied in court. Claiming fair use is a defense to a claim against copyright infringement, which means that claiming fair use as a defense is an admission that copying has taken place.

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Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

Re: Are ''unofficial'' guide or commentary about copywritten material free from

If you use the picture of the character, that may be a copyright issue. You may be able to get clearance from the copyright owner simply by asking. If you create scenarios around the character, that may be a copyright issue. It would be a derivative work. If you simply refer to the characters as a reference, then you probably have not violated the copyright. In some ways it is an issue of degree of use and form of use. Using "Darth Vader" in a sentence is not a copyright violation. Writing an original story about Darth Vader is. You fall somewhere in between and without further information, its hard to make a clear determination. Usually commentary or observations are OK. Disparaging commentary can bite you.

Re: Are ''unofficial'' guide or commentary about copywritten material free from

Perhaps because I have a slightly different interpretation of what you are doing(?), it seems I am somewhat less optimistic about using the material than the other responding attorneys. I read your question as the book was something along the lines of "Darth Vader's Guide to Love" or "Love the Darth Vader Way" -- whether that's the title or not, if that's the content, you are going to need permission. If Darth Vader is referenced in regards to love in one sentence or one paragraph, you won't have an issue, and in that sense, I concur with the previous replies. But it sounded to me as if your entire book is built around this character. You will need to license the rights / obtain permission in order to do this. If you would like me to represent you in this process, and negotiate such a deal for you, please contact me through my website at http://www.incorporatecalifornia.com. Best of luck.