Can I Make a Dave Matthews Band Quiz?

Dear Rich: I am in the process of creating a Dave Matthews band quiz. It has questions from all aspects of the bands background, songs, and albums…etc. Would there be any copyright issues by creating these questions? Also, if down the line we were to charge a fee to download ‘more questions’ on this app, would that get into a sticky copyright area? Wow, the Dear Rich Staff feels old! We remember a time when you could listen to pop music without getting tested. Personally, we like the idea and we're in favor of anything that will put off dealing with life's big issues!
Right, you had a question. You can probably get away with your trivia app assuming you can make it past the app store gatekeepers (at the Apple Store and Google) and nobody from the DMB, the band's management, the band's publishing company, or the band's record label sees your app and cares enough to challenge. If the app is challenged, most likely you'll have a problem. First, the app store where it is located can terminate availability based upon its own analysis or a DMCA complaint (we've got a legal guide for app makers that explains this route), and second, the copyright owner (the band, label, publisher, etc.) could sue for copyright infringement or possibly trademark infringement. We base this conclusion on three previous cases involving trivia books (we wrote about them in this entry). We're not saying you might not eventually prevail but we would think twice before investing considerable time in commercializing this venture.

Wants to Create Mobile Movie Trivia App

Dear Rich: We want to create a trivia game for mobile devices. The topic is movies characters. We want to show some drawings too (made by our artistic staff). Is there a copyright problem with using their names and showing drawings representing them, even if some characters are from animation, or fantasy movies? If permissions were like traffic signals, our staff would give your mobile app a yellow light. You're probably fine but proceed with caution. As we've discussed before, movie characters are often separately copyrightable from the movie(s) in which they appear. If the character is separately protectable (or if the still used from the movie is protectable), your drawings would likely be derivatives and the combined use of character name and image could be considered infringing. We say "could be" because this legal analysis is likely to be overkill. If we examine the cases in which trivia merchandise is pursued (as we did at a recent post), it's usually because it focuses on one movie, TV show, or book. That is, the owner of the movie, book, or TV show feels as if their work is being ripped off. We think you can  conclude that as long as you don't focus your trivia game on one work or character, then the odds diminish as to whether anyone will be motivated to chase you down (and your chances of claiming fair use increase).