2

I'm looking for a name to give my open-source and non-profit project that will best represent its purpose. Presently, the ideal name for the project would be the name of a certain individual (Ken Burns) with the first letters reversed: benkurns. Given the nature of the project:

  • open source (GPLv3)
  • free, non-profit

Do I require permission from an individual before using a corruption of their name as the project title?

  • 1
    I think, this is a rights question but this is not copy right. It is a general question which applies to all projects, not only digital ones. So, I think, there is a legal stackoverflow where this can be moved to. – User Jun 16 '18 at 15:43
  • According to peoplefinders.com/peoplesearch/… there are an awful lot of people named "Ken Burns". You planning on getting permission from them all? – John Forkosh Jun 16 '18 at 21:16
  • @JohnForkosh I'm asking if I need permission in the first place. Furthermore, Apple got permission from the well known documentary maker Ken Burns to use his name in their software, and didn't require exclusive permission from others with the same name. – Max K Jun 16 '18 at 23:31
  • @MaxK I'd guess Apple was using his name as either an explicit or implicit endorsement of their product, which would indeed require permission (if not a contract involving payment/consideration). And I take it you're using it as a play-on-words, or something like that -- your question includes the tag "non-commercial". And lots of people probably refer to "Ken Burns" (and just about every other famous person) one way or another, both spoken and in print. As long as it's "non-commercial" (and not slanderous/libelous), they can't possibly care or pay much attention to every such occurrence. – John Forkosh Jun 17 '18 at 9:47
4

Personality rights differ wildly between jurisdictions, especially between common-law and civil-law jurisdictions. In general, you have no right to use another person's name or likeness. There is no general exception for non-profit usage. You will have to check your applicable laws for details.

Personality rights have trademark-like aspects, but for natural persons. They also touch on privacy and free speech issues. Questions that arise are:

  • Could your usage of this name lead to confusion with the natural person?
  • Could your usage of this name be mis-interpreted as an endorsement by the natural person?
  • Could your usage of this name somehow be detrimental to the natural person (when weighed against your free speech rights)?

In some jurisdictions, your non-commercial use may weigh in your favour but may be irrelevant in others. The strength of this particular mark (even when obfuscated by swapping letters) probably weighs strongly against your use.

For further clarity, consider these thought experiments, assuming you are creating a video player widget for websites:

  • Consider an actual trademark like YouTube. Can you name your project TouYoube as a play on that? If not, then the same reasoning would likely apply to personality rights (especially in U.S. jurisdictions).

  • Consider downstream usage of your project. You name the video player “BenKurns” as a pun on “Ken Burns”. It gets more successful and starts being used on porn sites. Would the use of the name “BenKurns” on porn sites violate the personality rights of Ken Burns? If so, who would have performed the violation, the site or you?

I don't know the “correct” answers for these thought experiments and the answers will of course depend on jurisdictions and specific details of the case. But your proposed usage is raising questions where the answer is not obviously “go ahead, you're fine”.

I would suggest that you avoid celebrity names or puns on these names for open source projects. Quite likely, no one will see your open source project and no one will care. However, you are inviting an unnecessary risk for cease and desist letters.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.