Complicated Slender Man Rights

[fighder]

So I am from Canada, and I make video games. I am planning to use this urban legend name Slender Man for portfolio and non-commercial uses, along with some classmates. Problem is, there is a creator name Victor Surge (real name Eric Knudsen), and an option holder whose name is unknown. I tried contacting Victor through his devianArt account, but he had not replied in three days, and his last active post was in Feb 2015.

The name of my project will be Slender: Childhood, which matches two existing games Slender: The Eight Pages, and Slender: The Arrival. I tried contacting the creator and studio via twitter and email, but no response in three days.

If they never respond to me, is it ok for me to use it for non-commercial purpose? And of course, there will be credit for them.

 

[Just Blue]

So I am from Canada, and I make video games. I am planning to use this urban legend name Slender Man for portfolio and non-commercial uses, along with some classmates. Problem is, there is a creator name Victor Surge (real name Eric Knudsen), and an option holder whose name is unknown. I tried contacting Victor through his devianArt account, but he had not replied in three days, and his last active post was in Feb 2015.

The name of my project will be Slender: Childhood, which matches two existing games Slender: The Eight Pages, and Slender: The Arrival. I tried contacting the creator and studio via twitter and email, but no response in three days.

If they never respond to me, is it ok for me to use it for non-commercial purpose? And of course, there will be credit for them.

U.S. Law only

 

[justalayman]

If the holder of the rights is in the US, or more correctly the rights are registered in the US, it does involve both US law and Canadian law.



No, you don't get to use another's trademark simply because they have not responded to you. Your statements which is you make video games yet you go on to state this work is for your "portfolio" and will not be used for commercial use is a bit confusing.

If this is some work that will never be published such that the holder of the rights would never become aware of it it isn't likely to become a probiem BUT what it sounds like your ultimate use of the work might be will result in your work being published such that the owner of the rights to slender man may become aware of it. Depending on a lot of details not present and possibly not even known at this time, it could in fact be a huge problem for yiu.


The fact you felt you needed to obtain permission to use the mark suggests you have some belief it is necessary to have that permission. Given that suspicion, I suggest you either do not go forward without permission or at a minimum running your project past an ip lawyer who can review all of the facts and advise you.

 

[Silverplum]

The owner of the copyright does not have to answer you; no answer means the answer is no.

 

[single317dad]

For reference, here is Knudsen's original submission on Jun 11, 2009 to the somethingawful forums with the first framework and images of Slender Man:

http://forums.somethingawful.com/showthread.php?threadid=3150591&pagenumber=4

(Note that there is quite a bit of NSFW/NSFL content on that website)

The posts there are old enough that images are now deleted, but all images are easily found in internet searches.

Rights ownership of Slender Man is not entirely clear, but it seems Knudsen has sold the rights to film and other adaptations to an unnamed third party, ostensibly in order to prevent lesser quality adaptations from being made.

I was around SA during Slender's creation. They, along with a few Reddit subs, are some of the most creative and talented groups on the internet, and produce some amazing works of art, fiction, and more practical works (along with tons of garbage). Don't think for one minute that their works aren't protected or that misuse won't lead to lawsuits.

 

[quincy]

If the holder of the rights is in the US, or more correctly the rights are registered in the US, it does involve both US law and Canadian law.

This is not entirely correct. There are no international trademark laws.

If a trademark registered in the US has not been registered in another country, someone in the other country can register it and use it to identify their own goods or services. They may only have geographic limits to the use - the same goods marketed under the trademark in the other country could not be marketed in the US because of the US registered trademark (there are a few exceptions).

The Slender Man mark is protected by copyrights in the US (for text, artwork, photographs, recordings) and Slender Man has trademarks filed with the USPTO by It Is No Dream Entertainment (filed in April 2014; published for opposition in March of this year). The registration is in several classes (computer game software, toys, movies and TV).

fighder would have to check the registration of the mark in Canada. Although he could be sued for copyright infringement in Canada by the US holder of rights (Victor Surge, aka Eric Scott Knudson; Evelyn Jane Fogg), the trademark rights in other countries are presumed to belong to the first to register the mark for use in commerce (and not the first to use the mark in commerce).

Depending on fighder's intended uses of Slender Man, his use could be allowable under US laws but he would have to check for the legality of his uses under Canadian copyright/trademark laws (which differ in significant ways from US laws).

 

[justalayman]

Quincy, I said nothing about international law. I said it involved both us and Canadian law.

The rights are initially established per us law but in accordance with the Madrid Protocal it may have also been registered in other countries as well. I did not investigate such possibility. If it has been registered as such it does invoke Canadian law.


Even without that given the worldwide aspect of the Internet op's use of an only us registered mark can result in a claim due to its publication via the Internet if it is such the US courts can assert personal jurisdiction. In such a situation it again invokes Canadian law as to the availability of access to a Canadian resident by a us court in determining whether the claim in the us court is enforceable


And in reality, the last situation can in fact involve international law.


So, given these statements, can you explain where my original statemebt was "not entirely correct"? It may not have been thorough in its explanation but I don't see it as being not entirely correct.

 

[quincy]

Quincy, I said nothing about international law. I said it involved both us and Canadian law.

That would be international.

The rights are initially established per us law but in accordance with the Madrid Protocal it may have also been registered in other countries as well. I did not investigate such possibility. If it has been registered as such it does invoke Canadian law.

This is why we handle US law questions only. An investigation into the registration of the trademark would need to be done to determine if rights to the name Slender Man have been established in Canada.

Trademarks registered in the US do not give the US trademark holders rights to the trademarks in other countries unless they have registered the trademarks in those countries (again with a few exceptions). The laws that apply to fighder will be the laws of Canada (and specifically the laws of his province). If the Slender Man mark is not registered in Canada, he can use the mark without trademark infringement in Canada. He only has issues with the copyrights (text, artwork, photographs) - but, again, it would be under Canada's copyright laws that he would be sued if the US rights holder takes exception to his use of the Slender Man character (and names, as a note, are not covered under US copyright laws - only under trademark laws).

Even without that given the worldwide aspect of the Internet op's use of an only us registered mark can result in a claim due to its publication via the Internet if it is such the US courts can assert personal jurisdiction. In such a situation it again invokes Canadian law as to the availability of access to a Canadian resident by a us court in determining whether the claim in the us court is enforceable


And in reality, the last situation can in fact involve international law.


So, given these statements, can you explain where my original statemebt was "not entirely correct"? It may not have been thorough in its explanation but I don't see it as being not entirely correct.

There was no mention of the internet use of Slender Man. There WAS mention of a non-commercial use and video games and a portfolio and classmates. If this is an educational project, it could very well be a fair use of the rights-protected material in the US. It could also be a comparable fair use (fair dealing) in Canada.

But if fighder is to be sued at all, for either his use of a trademark or his use of copyrighted material, it will not be under US laws that he will be sued. The laws that are important for him to investigate are the laws of Canada.

I understand your point about getting permission from any rights holder - that is always the smartest way to operate - but, quite frankly, the most important post in this thread was Blue Meanie's post.

 

[justalayman]

That is not international law. International law involves international laws. There can be issues involving us law and Canadian law that are not international law issues.


I didn't limit my response to the specifically defined statements as imo his posted hobby, job, whatever you want to call it of making video games can very easily result in his use of the mark being published in manner that could fall under US law and as such, invoke us trademark laws. Granted it's a stretch but I am suspicious by nature.


Now whether actions afforded under the Madrid Protocol are international law or not I'll leave to you to define.

 

[quincy]

That is not international law. International law involves international laws. There can be issues involving us law and Canadian law that are not international law issues.


I didn't limit my response to the specifically defined statements as imo his posted hobby, job, whatever you want to call it of making video games can very easily result in his use of the mark being published in manner that could fall under US law and as such, invoke us trademark laws. Granted it's a stretch but I am suspicious by nature.


Now whether actions afforded under the Madrid Protocol are international law or not I'll leave to you to define.

Because we do not know all of the facts of the Canadian student's project and we do not know if Slender Man is a trademark in Canada or the extent of figdher's use of copyrighted material in his project, we therefore do not know if his uses would infringe on any IP rights held by Slender Man trademark/copyright holders or whether his uses would require the permission of the US trademark holders/copyright holders.

His project needs to be personally reviewed by an attorney in his province of Canada to determine if his project would violate any IP rights.

From what fighder HAS said, however, there is an indication that his project would most likely fall under Canada's fair dealing. In recent years, the factors used for determining fair dealing in Canada have become substantially similar in nature to the factors used in determining fair use in the US. He has said he is "matching" (comparing?) two Slender Man games for a non-commercial project and for a portfolio. He has not mentioned creating a video game for public consumption, either for sale in his country or for sale in the US or for sale online. His purpose sounds educational in nature and it does not appear it would affect the market for or the value of the rights-protected works.

If there is a challenge to fighder's use of US rights-protected material, however, it will be under Canadian law that fighder will be sued. Not under US law. It will be the laws of Canada that fighder needs to concern himself with and not those of the US and so he should consult with an IP lawyer in Canada.

 

[justalayman]

So if you developed a video game you thought you could sell, even if the original intent was merely for a class project you dont think you would sell it given the opportunity? Maybe im overly cynical but Money makes the world go 'round and when I hear of somebody putting in the huge amount of work required to create a video game, especially when they are using a well established character, well, you can color me green but the next logical step is selling the thing.


Otherwise why risk any copyright issues (which has not been addressed at all and as you stated is something where there is more of an ability of the rights holder to engage the infringer in Canada) or trademark issues but rather make up their own story line and characters? After all, given this is supposedly for a class project and their portfolio (if there is no intent to profit from op's work somewhere (not saying necessarily the slender man character) why build a portfolio?) wouldn't it be more impressive to create everything yourself?


As to the last paragraph;

I agree if the use is limited to what has been stated but it is possible for op to never leave Canada but through activities on the internet subject himself to issues involving US law.


So, even if we left this to US law only, it would still be appropriate to advise op to keep his project in his pants and not run around and show everybody what you have.
Of course with his pants representing Canada and his project being, well I think you can guess and everybody referring to those outside of Canada



Don't you hate it when somebody explains their analogy?

 

[quincy]

So if you developed a video game you thought you could sell, even if the original intent was merely for a class project you dont think you would sell it given the opportunity? Maybe im overly cynical but Money makes the world go 'round and when I hear of somebody putting in the huge amount of work required to create a video game, especially when they are using a well established character, well, you can color me green but the next logical step is selling the thing.

I try not to presume to know the intentions of others. fighder said he was creating a project with classmates and it was for a non-commercial use. The project's use for a portfolio indicates to me only that he wants to show what he can do - perhaps as a requirement for a class or perhaps for college admittance or perhaps for employment purposes. He made no mention of selling what he and his classmates plan to or have created and, in fact, he indicated the opposite with his "non-commercial" statement.

Otherwise why risk any copyright issues (which has not been addressed at all and as you stated is something where there is more of an ability of the rights holder to engage the infringer in Canada) or trademark issues but rather make up their own story line and characters? After all, given this is supposedly for a class project and their portfolio (if there is no intent to profit from op's work somewhere (not saying necessarily the slender man character) why build a portfolio?) wouldn't it be more impressive to create everything yourself?

There might NOT be any copyright issues or trademark issues at all. There might be little to no legal risk. A lot depends on what fighder's project involves and how much of any copyrighted material his project will use. His project might involve creating a video commentary on the Slender Man character with small excerpts taken from existing video games. The Slender Man character has been publicized widely because of its involvement in a crime that was based on the character and that makes it a newsworthy topic subject to examination and discussion.

Following, for some information, is a link to a brief overview of copyright fair dealing in Canada and the factors looked at - and, again, we are looking at Canada's laws not the laws of the US, because fighder is in Canada and not the US. The laws of Canada apply to him.

https://library.concordia.ca/help/copyright/?guid=fairdealing

As to the last paragraph;

I agree if the use is limited to what has been stated but it is possible for op to never leave Canada but through activities on the internet subject himself to issues involving US law.

He has made no mention of internet use. He has only made mention of whether he needs permission from US copyright/trademark holders for his project on Slender Man. Although it is smart to get permission from rights-holders for ANY use of rights-protected material, it may not be necessary for his purposes. Crediting the author(s) may be all that is required.

So, even if we left this to US law only, it would still be appropriate to advise op to keep his project in his pants and not run around and show everybody what you have.
Of course with his pants representing Canada and his project being, well I think you can guess and everybody referring to those outside of Canada

Don't you hate it when somebody explains their analogy?

If we left this to US law only, it is possible that the project fighder is creating with his classmates would fall within the US Copyright Act's fair use guidelines.

Fair use is not permission to use copyrighted material, of course, but it is an affirmative defense to infringement. Because it is a defense and not permission, this makes it smart to get permission from any copyright holder prior to using their copyrighted material. But fair use also means just that. It is a use that, while infringing on copyrighted material, is an infringement excused under the law. The copyrighted material can be used without penalty.

You can refer to the fair dealing factors in the Canadian link provided above to see what are essentially the same factors looked at by US courts in determining fair use.

With all of that said, I certainly agree with you that is generally best to keep your project in your pants, both in Canada and in the US.

 

[justalayman]

In contrast to your abilities, I am psychic. My doctor even told me that himself.

Hold on a sec. My wife is pinching me.



Tick
Toc
Tick
Tick

(That's a clock running)





Ok, I'm back. My wife was bugging me. She said the doctor said I was psycho, not psychic.



Meh, pretty close to the same thing, isn't it?


But anyway, Merry Christmas and if they celebrate US holidays in Canada, Merry Christmas to fighdr too but given his user name I suspect he doesn't like Christmas. I don't like figs either but there's more to Christmas than that figgy pudding stuff.

 

[quincy]

In contrast to your abilities, I am psychic. My doctor even told me that himself.

Hold on a sec. My wife is pinching me.



Tick
Toc
Tick
Tick

(That's a clock running)





Ok, I'm back. My wife was bugging me. She said the doctor said I was psycho, not psychic.



Meh, pretty close to the same thing, isn't it?


But anyway, Merry Christmas and if they celebrate US holidays in Canada, Merry Christmas to fighdr too but given his user name I suspect he doesn't like Christmas. I don't like figs either but there's more to Christmas than that figgy pudding stuff.

Hahaha. Happy Holidays, justalayman. Figgy pudding (and fruit cake) tastes better after you have consumed several Red Dwarfs.

I have to say that your posts tend to make me work far harder than I like to work but I always appreciate the way you see things and think things.

As a note, though, there is no trademark registered for Slender Man in Canada and no copyrights registered in Canada on Slender Man material (from what I could determine on a brief check), so fighder should be able to use the name "Slender Man" without infringing on trademark rights in Canada (again, this is based on very brief research and fighder would need to have less-brief research done to determine this better) and, again, his use of a limited amount of Slender Man material (clips, excerpts) could be considered a fair deal depending on all of the facts of his use.

As another note, Canada has added a new exception to their Copyright Act that covers non-commercial user-generated content (which covers posting derivatives of copyrighted material in amateur videos for YouTube). Not that this necessarily applies to fighder but here is a link to the Canadian Copyright Act's new Section 29.21 (to which the US has no comparable exception): http://laws-lois.justice.gc.ca/eng/acts/c-42/page-20.html This is why he really needs to speak to an IP attorney in Canada for a personal review of his project and not rely on US laws to tell him if his project violates IP rights.

At any rate, I wish you (and everyone else who celebrates Christmas) a merry Christmas (although with no snow and 50+ degree temperatures, it hardly seems like Christmas time around here).

 

[fighder]

Clearing up my use

Ok so thats a lot of replies.

Basically here is the use of Slender Man I will be using for:

Portfolio: A project for both my team members and I to use for portfolio purpose, meaning for the use of demonstrating our creative and technical ability in creating video games during job interviews, or self promoting.

Steam Green Light (Free Demo): If things turn out well, we also considered just posting the game on steam, a video game distributing platform, for free. We will not sell this project for profit, and if we change our mind other wise, we will surely further consult.

I believe Victor is from Japan, and I have no idea where the trademark is registered. Also, what happens if the creator and option holder died? What happens to IP when the IP holders are deceased?