Fictional Characters

Legal Protection For Fictional Characters – What can writers protect and what can others use?


The Short Answer

Copyright laws protect fictional characters provided the characters are sufficiently unique and distinctive. Legal protection for fictional characters is separate from the legal protection extended to the underlying creative work like the book or movie. Some characters also are well known enough to receive trademark protection too.

Writers may only use copyright and/or trademark protected characters without permission under limited circumstances like when the use is considered fair or de minimis, or if the characters have entered the public domain.

 

The Long Answer

Copyrights

Copyright law protects creative expression. As applied to fictional characters, the legal theory is based on derivation copyrights (i.e. the exclusive right to make new works based on the original work). Derivation rights are part of the bundle of exclusive rights given to the creator of an original work so they might control how the work is used, including the right to copy, produce, distribute, sell, and adapt their work (a.k.a., derivative rights).

Derivative works become separate copyright protected work independent from the original as long as the transformation, modification or adaptation of the original work is substantial and original. Common types of derivative works include musical arrangements, cinematic adaptations, art reproductions, sound recordings, dramatizations and fictionalization.

How does a character rise to the level of copyright protection?

If the character is sufficiently unique and distinctive, the character merits copyright protection. Stock characters such as aliens, ninjas, military sharp shooters or robots are not distinctive enough to rise to level of protection. But get detailed in your expression of a character, and shazam, protection exists. For example, a general alien lacks protection. Not so for a big-headed alien with a long neck who wants to phone-home.  A robot gets zilch. But a gold clad humanoid robot programmed for etiquette and protocol reaps the benefits of copyright protection. A wizard, no. A young wizard with untidy black hair, round glasses, and a lightning bolt-shaped scar on his forehead, yes.  You get the picture – distinctive and well-defined.

If your fully realized character fits these limits, you are in luck. Your distinct creative expression is enough to merit legal protection and the ability to prevent others from using the character’s image and expression without your permission unless limited circumstances apply.

When can others use a copyright protected character without permission?

Fair Use

While copyright law grants authors a monopoly over the use of their work, there are situations where that right is significantly limited if it falls within the fair use exception. Courts use a fact-specific test with four factors when making a fair use determination.

One common misconception I often see zipping around the Internet is that a writer can legally use copyright protected material if it qualifies as fair use. Unfortunately, that is not the case. Fair use is an affirmative defense asserted when sued for copyright infringement.

To determine if an infringing work falls within the fair use exception, courts weigh these four factors:

1. The purpose and character of the use;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used; and

4. The effect on the market of the copyrighted work.

While all factors are not equally important in every case, all should be considered when making a determination if the defense of fair use might apply to the use of copyright protected work in question. When it comes to using copyright protected characters, factors 1 & 4 are most important.

Normally, the first factor involves use of the copyright protected material for criticism, comment, news reporting, and teaching which are all strong fair use factors. Factor one also covers use of the copyright-protected material for parody, satire, and derivative work that is transformative (i.e., the original is transformed by adding new things to the work). The more transformative a work, the less important the other factors are, and the stronger the fair use claim becomes. In addition to the above, courts also look at whether the use is commercial or non-commercial. For most writers, the use of a copyright-protected character for a new creative work will almost certainly be for commercial purposes, which weakens your claim of fair use.

Factor four is viewed with the impact on the market for the original characters. If the effect on the market value of the original content is minimal, say like fan fiction offered for free (see below), then your fair use claim is stronger. But if the use of a copyright protected character cuts into an author’s market, any claim to fair use quickly disappears.

If you intend to rely on fair use when using a copyright protected character, do you homework. It would be a huge hassle to find out in court that your get-out-of-jail-free card did not work.

De Minimis Use

If the amount of material copied from the character is small enough, the court may permit the use without conducting a fair use analysis. There is no clear line test for de minimis use. Courts review use on a case-by-case basis to determine if enough of the copyrighted work has been used to reach copyright infringement. If someone’s character makes a cameo appearance in your work or you mentioned the character in passing, most likely the use is de minimis and permitted.

Some authors are extremely protective of their characters and are known to sue if their characters are used in any way without their permission. Do your research on the author. Find out if others have used the author’s characters and if the use ended with legal repercussions. Then decide for yourself if the use of the copyright-protected character is worth the risk.

Public Domain

Public domain is a legal term and a fairly detailed area of law that refers to creative materials not protected by intellectual property laws (i.e. copyright, trademark, or patent). In general, when creative work enters the public domain, the public owns it and anyone can use it without securing permission. Once the work is in the public domain, no one owns it.

When does a character enter the public domain?

The law is somewhat confusing but generally there are four ways a character becomes public domain material.

1. Characters published before January 1, 1923, are in the public domain due to copyright expirations.

2. Characters published between 1923 and 1977 enter the public domain 95 years after their first publication date (so characters published in 1923 just entered the public domain as of January 1, 2019 due to copyright expiration). Two additional possibilities exists for characters published in this time bracket to enter the public domain:

— If a character was published before 1964 and the copyright owner failed to renew the copyright

— If a character was published before 1978 without a proper copyright notice

3. Characters created after 1977 enter the public domain 70 years after the creator’s death. Characters created by a corporation enter the public domain either 95 years after publication or 120 years after creation, whichever comes first.

4. The copyright owner dedicated the character to the public domain.

Two additional caveats:

Just because a character’s copyright has expired does not automatically mean the character is in the public domain. Some characters are protected under trademark laws too (see below). While copyrights do not last forever, trademarks do as long as the owner continues to use the trademark property in commerce.

If a character you want to use is in the public domain, make sure the version you use is not a modern depiction created by someone else. The monster from Mary Shelley’s novel Frankenstein (which is in the public domain) is much different from the Frankenstein created by Universal (which is not in the public domain). Mary Shelley did not write about a green-skinned, flat-topped, bolts-in-the-neck monster.

Fan Fiction

Popular books, movies, or cable shows often inspire devoted fans to write their own fictional stories about beloved characters, settings, or plots. These works, know as fan fiction, are works of fiction with new adventures, reimagined worlds, and creative relationship pairings for their favorite characters. While fan fiction is a popular means for fans to creatively express their admiration for an author’s work and connect with the characters they love, it is technically still copyright infringement.

Fan fiction thrives because some authors choose to allow it. Creators of original content have always been divided on the how to handle fan fiction. Responses have ranged from indifference, appreciation, and encouragement, to flat-out opposition. Authors like Neil Gaiman have no objection to fan fiction as long as people are not commercially exploiting his characters. Stephanie Meyer’s approves of fan fiction, and has a list of fan fiction sites on her website. Other authors embrace fan fiction but with limitations. J.K. Rowling and George Lucas will not tolerate pornographic fan fiction about their characters. While other authors like Orson Scott Card and Anne Rice, who once opposed fan fiction entirely, have softened their stance over time and now tolerate it.

If the characters and stories of an author passionately move you to write fan fiction, make sure your fictional stories are legally compliant and follow an author’s wishes. A little up-front work will protect you in the long run.  If you need more information about fan fiction, see my earlier article: The World of Fan Fiction – Where Creative Expression And Copyright Collide.

Stock Characters

For those characters that lack distinctiveness and seem common, feel free to pilfer, embellish, and use as inspiration for your own version.

 

Trademarks

Trademark law protects consumers by helping them reliably identify the source of a good or service so there is no likelihood of confusion. Typically trademarks are usually logos, slogans, and business names, but trademarks also include characters provided the character is used with goods or services (like a logo, sticker, or toy packaging). The trademark must be used in connection with the use or sale of goods or services. Trademarks, unlike copyrights, do not expire as long as the owner continues to use the mark in commerce.

When does a fictional character merit trademark protection?

If the character has acquired secondary meaning then trademark protection applies, which is another way of saying the character’s name and/or graphical representation is sufficiently well known that the public would associate the character with an author or corporation – like Jack Reacher, Harry Potter, Mickey Mouse, or any of the various Marvel characters.

Fair Use

Like with copyrights, a writer can assert a trademark fair use defense. There are two types:

1. Descriptive Fair Use permits use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services.

2. Nominative Fair Use permits use of another’s trademark to refer to the trademark owner’s actual goods and services associated with the mark.

Basically, just remember that mentioning a trademark protected character like Harry Potter in your book will not land you in litigation, nor will using the name Harry Potter to refer to the Wizarding World of Harry Potter Theme Park. But should you use the name Harry Potter to run an unauthorized festival celebrating the J.K. Rowling series, then prepare for litigation.

 

If the characters you want to use are well known, it is likely the owners are vigilant in policing illegal use of their trademarks and copyrights. Using a famous character may not be worth the risk of being sued.

If you intend to write a book or create new work based on well-known characters, I would suggest preparing a detailed outline of how you intend to use the characters then have an intellectual property lawyer vet the proposed use for legal risks.  Vetting your outline first will help you understand the level of risk you are up against, and provide guidance for whether to pursue a license or how to sidestep any potential legal pitfalls.


Photo Credit: Rickydavid | Visual Hunt | CC BY-NC-ND

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

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