Akron, OH asked in Copyright, Entertainment / Sports and Intellectual Property for Missouri

Q: Would I be able to write a musical titled, “Danny Phantom the Musical” and use the likeliness of the characters?

I am looking to write a musical and I would love to write a musical based on the cartoon Danny Phantom. I noticed that there is a trademark on Danny Phantom. So I was curious if I could use the name Danny Phantom and attach Musical to it, while also using the likeliness of characters in the animated show.

1 Lawyer Answer
James D. Williams
James D. Williams
  • Entertainment & Sports Law Lawyer
  • Richmond, VA

A: The biggest thing that you have to worry about is probably copyright because you would be making a derivative work by making a musical. Viacom has the registration for the show, and when you adapt and derive content from one medium into another, you need a license from the respective owner(s). Otherwise, it's a copyright infringement, most likely.

For copyright, it also depends on what all you're doing/how you're using the characters. There are possible fair use considerations, but as a reminder, fair use is a legal defense and not a legal right in America. The judge/court will be the only party able to confirm something is a fair use, so also keep that in mind.

As for trademarks, it will come down to whether or not you either (1) use the characters in commerce and as a designation of origin or (2) whether your potential use is considered dilution or tarnishment of the existing trademark. Trademarks are source identifiers, and if you're not using the trademark as a brand, then you may not be infringing any trademark rights. If you're making money from it and they find out, then I'd say expect a cease and desist letter at the least.

If Viacom believes that your musical with the Danny Phantom characters diminishes their trademark rights, then they may try to sue for dilution/tarnishment, especially if they try to suggest your musical is low quality.

These are all some basic possibilities to keep in mind. Generally, if you're going to use a referenced work, then asking and receiving written permission is the best way to go. If you start work on the musical and hear from Viacom, then I absolutely recommend contacting an attorney ASAP.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.