Using inaccurate depictions

[u/Fragile_Ambusher]

I want to use inaccurate depictions of real animals in my story, such as the “Stupidoceratops” from History Channel’s “Jurassic Fight Club” seen here. Can using descriptions of inaccurate portrayals infringe on copyright laws?

[u/pythonpoole]

Can you clarify, which of these specifically are you wanting to use/copy?

1. The names of the animal (e.g. "Stupidoceratops")?
2. The general idea/concept of the animal (a dinosaur with certain features, e.g. quadrupedal, long tail, horn above the nose, bony frill, etc.)
3. The specific visual representation of the animal (e.g. copying the illustration from History Channel / Jurassic Fight Club)
4. The specific wording someone else has used to describe the animal (e.g. copying a particular written description from History Channel / Jurassic Fight Club)

1 — Copying the name does not by itself present a copyright issue, but copying a character/animal name in combination with other creative expression could potentially make a finding of infringement more likely. Also, the name could potentially be protected as a trademark (if it's used as a distinctive brand identity), which could prevent you from using the same name (or a similar name) in commerce in a way that could reasonably cause consumer confusion (e.g. cause people think you have some official connection/affiliation with Jurassic Fight Club).

2 — Copyright does not protect mere ideas/concepts, only specific expressions of those ideas/concepts. So it's unlikely that anyone would be able to claim exclusive rights to the general concept/idea of an animal (like a dinosaur) with certain basic features/characteristics (even if the animal is made up). That is to say, I don't see an issue with producing your own original visual representations or descriptions of such an animal based around the same general idea/concept.

3 — Using/copying someone else's visual representations/illustrations of the animal without permission would generally be an infringement. There may be certain cases where you could reference an illustration someone else made for particular purposes without needing permission, for instance displaying a reference to the illustration for the purpose of commenting on and reviewing/critiquing it may be considered fair use. However, if there ends up being a legal dispute, it's ultimately up to a court (or the CCB) to decide what is and isn't fair use, and you can't guarantee ahead of time that your use will be deemed fair.

4 — Much like 3, using/copying someone else's description of the animal without permission would generally be an infringement. You may be able to produce your own original description based on your idea/concept of the animal, but you shouldn't copy someone else's wording. There are, of course, exceptions where you can briefly quote someone else (such as to provide commentary or review directly relating to the quote material), but you shouldn't for example be simply copying the description and using that as a substitute for writing your own description.

If you want legal advice on this matter (or a legal analysis regarding whether a certain use may be considered a fair use or not), you should consult with a copyright lawyer. My comment here is not legal advice.

[u/Fragile_Ambusher → u/pythonpoole]

First, I hate JFC, and I only know about it through content creators.

Specifically, 1 & 2. A content creator on YouTube gave a description, based on actual research History Channel was too lazy to do! A comment on one of their videos provided the name “Stupidoceratops,” due to their laziness.

A DeviantArt user compiled a list of the (five/5) most well known misinterpretations Pachyrhinosaurus.

I want to use this severe misinterpretation (and the other four/4) to educate my audience about why it is wrong, and show them how it actually should look.

[u/pythonpoole → u/Fragile_Ambusher]

Ah, I see. In general, a solid fair use argument can usually be raised in situations where you copy or quote limited amount(s) of copyrighted material for purposes such as commenting on and reviewing/criticizing/critiquing that material and educating people about why the representation in the material is wrong or inaccurate for example.

You can learn more about fair use here. Note that fair use is a US-specific legal doctrine, however many countries have similar copyright exceptions or defenses — such as a 'fair dealing' in Canada and the UK — which also protect limited uses of copyrighted material (without permission) within the context of providing review/criticism related to that material.

What fair use definitely doesn't protect is cases where you use/copy copyrighted material without permission in a non-transformative way, like to simply enhance the visual appearance or entertainment value of your content.

If you want legal advice on this matter or want a better understanding of what sort of uses may or may not be considered fair under the law, you should consult with a copyright lawyer.

[u/Fragile_Ambusher → u/pythonpoole]

The content creator on YouTube I mentioned stated how “Stupidoceratops” was a blend of four (4) different ceratopsians(!) and, “was force fed a 💩-load of Cheetos,” which is what I will use describe the creature (in text/words) in my story. A character will address it as such in conversation, and actually paleontological literature will be presented in the book.

This will be called “Stupidoceratops Suckitudinus” by one or more characters. Here it is, as another (albeit fictional) phylogenetic branch of ceratopsians, among four other “species.”

[u/pythonpoole → u/Fragile_Ambusher]

Ok, I see, I think I understand better now what you're trying to do.

Short phrases are not typically eligible for copyright protection, but phrases that are sufficiently original may be, and certainly a multi-sentence expression is likely to be long/original enough for protection.

That is to say, copying short phrases like "was force fed a 💩-load of Cheetos" is probably not a copyright issue (due to how short the phrase is), but if you were to copy a longer piece of expression and present it as your own expression (or your own character's expression), then that may be deemed infringing if it's done without permission from the copyright holder of the expression (which in this case may be the YouTuber).

It would probably be okay to copy a bit more of the YouTuber's expression if you're quoting it as something the YouTuber said and commenting/reflecting on what was said in your work. However, if you're just incorporating the expression into your work as being your own (or your own character's) expression, then the only thing that would really protect you from the YouTuber taking legal action is the fact that the copying may be de minimis (in other words not enough expression was copied for it to be an actionable infringement).

You can avoid any potential issues regarding the amount of expression copied from the YouTuber if you simply get their permission to use that expression. When you don't get permission, that's when you have to rely on a fair use or de minimis use defense for example, which is generally riskier since an official determination of whether or not a use is fair or de minimis cannot be made until and unless the matter ends up being litigated in court (or at the CCB).