If yes, what uses of a list of character names are non-infringing (on copyright/trademark) according to the Feist v. Rural ruling? E.g. can the character names be included in a dictionary?
2 Answers
Names are never copyrighted
No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, [email protected] or see Circular 33 for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.
Feist did not deal with trademarks at all. A list of trademarks indicating who holds their trademark is not confusing in the market as to the origin of goods. If it is a dictionary or directory that just lists facts, such as the character name, holder and games they are in (aka: Mario (Nintendo): Super Mario. Super Mario 2. Super Smash Brothers....) without images at all, then there is no trademark infringement - the trademarks are only in nominative use.
Names can not be copyrighted, but a list of names... maybe
A name by its very nature can not be copyrighted, but a list of names, like any written work, may fall under copyright law if it is not expressly a list of facts created by no creative endeavor. If the list of names you are talking about is a list of user names, then that may qualify as a list of facts, but if the list is something some game designer sat down and came up with as part of the creative work, then it is not. Inside a videogame: any text, source code, and/or graphics can be copyrighted, so a list of names copied as is from a game may be considered copyright infringement if the list is long enough to exceed fair-use practices and if the names demonstrate that they were the result of a creative process.
So, if the game has written somewhere either in the user interface or source code itself, the list of names: "Liam, Noah, Oliver, ... [1000 names later] ...Davian", and you copy this list exactly, then it could be copyright infringement. If the game has 1000 NPCs, and you make your own game where there are 1000 NPCs with the exact same names as the other game, then you are not copying a contiguous body of text; so, it is still in theory fine even if the names are not classified as a matter of fact.
That said, you may get sued anyway
Too much similarity between games is often used as grounds for suing over the possibility that you are using stollen source code. Because source code is both proprietary and copyrightable, companies don't need to prove that you are using thier source code to begin giving you a bad day. Just opening an investigation into IF you are using stollen source code can be very damaging.
Your computers could be seized, employee time wasted complying with audits and interrogations, an injunction could prevent you from selling your game until the investigation is over, your reputation could be destroyed, you have to hire lawyers, etc... in short, your company could be ruined even if the law suit never makes it all the way to court. Because of the cost of defending yourself, some game companies have been known to sue over things like this knowing full-well that they would lose in court because they are more interested in putting competitors out of business and/or to winning an out-of-court settlement from defendants who can not afford the cost of defending against the suit itself.
In short, just because something is legal does not always mean it is legally a smart thing to do.
