[Editor’s Note: Kelley Way will be presenting “Lessons in Literary Law: Overview of copyrights, trademarks, right of privacy/publicity, defamation, and contracts” at the BAIPA meeting on March 14 at 11 am, and “Copyright Registration Tutorial” at 1 pm.]
Fictional Characters in Books
In my previous articles, I talked about incorporating real people and real trademarks in your book. In this article, I’ll be talking about fictional people — specifically, fictional characters that are still protected by copyright.
The protection of fictional characters is a bit of a grey area. It used to be that there was no real protection for a character outside of the work it came from; however, thanks to Disney, that is no longer the case (Disney v. Air Pirates). Now, fictional characters are granted some protection, as long as the characters are sufficiently developed. There are a couple of tests that the courts use to determine if a character merits copyright protection – but frankly, that’s far too boring to go into detail on here, and not relevant to my point. For the sake of moving on, let’s assume that whatever character you want to use is protected by copyright.
If all you want to do is make a brief reference to a famous book or character (perhaps your character is a Harry Potter fan), you’re probably okay. Simply evoking a character doesn’t quite rise to the level of infringement, and if the reference is positive, the owner of the copyright would likely see it as free publicity. However, if you wrote a fantasy story where your character stepped into the Harry Potter universe and met Harry Potter in person, you would likely run into a problem.
There’s quite a bit of space between those two extremes, though. What do you do when your use of the character is more than a passing reference but less than incorporating the character into your story? There are a few options.
- Do some digging and see if the character is (or would be) protected by copyright. If there’s no copyright protection, then there’s no issue. See “Pride and Prejudice and Zombies” for more details.
- Get permission from the copyright owner. If you’re concerned about the copyright owner raising a fuss, it might make sense to be proactive and ask for permission. Of course, that permission may come with a price tag, so weigh the pros and cons before reaching out.
- Rely on the fair use doctrine. If fair use applies, then you have a green light to proceed. The only problem with this route is that fair use is decided on a case by case basis. In other words, you can’t truly be sure that fair use applies in your case until the trial is over. (For more information on fair use, see my article “When Can I Use Someone Else’s Material in My Writing?”)
Beyond these action steps, do your best to make sure the copyright owner doesn’t have any reason to sue you. If your use is relatively minor and makes their franchise look good, they won’t have much reason to complain. If it looks like you’re cashing in on their fame, or that their brand would be damaged by association, then there’s going to be a problem, and you should prepare for the possibility that they’ll come knocking.
If you have more questions or want a review of possible issues in your writing, feel free to email me at [email protected].