Tag Archives: copyright law

Thank you for your informative blog! About the copyright question. If I let’s say, take character (that I love very much) from one work, keep the character DESIGN and personality with some modifications, but drop her to my own world that is very different from the work she originated from, is that copyright issue? When I see character I love, then I tend to take them and fit them to my own work with some modifications, but core stays same.

Again, in case this gets separated from the previous posts, I’m not an expert on copyright law by any means. That said, straight lifting characters, even if you change their name and setting can be copyright infringement. The case I’m aware of is Salinger v. Colting. Fredrik Colting used Holden Caulfield, changed the name, and wrote something that amounted to an unauthorized sequel. Colting was using a different setting, and masked Caulfield by calling him “Mr. C,” but because he was still, recognizably the same character, with an almost identical background, the court found in favor of Salinger. You can find the actual rulings on a google search, if you really want the specifics.

Or, I could link directly: Salinger v. Colting, 607 F. 3d 68 – Court of Appeals, 2nd Circuit 2010

Also, the earlier ruling:
Salinger v. Colting, 641 F. Supp. 2d 250 – Dist. Court, SD New York 2009. Which is probably worth reading for it’s discussion on parody in regards to copyright infringement, if nothing else.

There’s also a related case:
Suntrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 – Court of Appeals, 11th Circuit 2001. Which includes a decent, quick, primer on the history of American copyright law, and a detailed examination of an actual parodic work looks like, from a legal perspective.

The big takeaway is, it’s not enough to simply rename a character, and stick them in an original setting. While Salinger v. Colting doesn’t directly address it, I’d say character design is something else you need to be very careful about appropriating. In other forms of media, it’s very easy to demonstrate when you’ve lifted a character’s appearance for your work.

You can take elements of a character. You can take the concept, and completely rework it. Copyright isn’t about the protection of ideas, it’s about the specific expression of those ideas. What this means for you is you can take the same basic idea for a character, and completely re-purpose it for your own work. But, the important element is that the final character is entirely your own, and not simply a version of the original character that’s been obfuscated so you could use it.

There is one major exception to this, parody. Usually, we think of parody as taking a fictional work and reworking it to be played for laughs. Legally, parody is taking a piece and reworking it as a direct critique of another piece of fiction. This can be humorous, or played straight. An example of the latter would be Watchmen which takes transparent versions of many Charlton Comics characters (primarily Captain Atom, Blue Beetle, and The Question), and uses them to build a (fairly damning) critical analysis of superhero comics. In the legal sense, Watchmen is parody, even though it’s quite serious.

If you’re starting from a point of looking at a fictional character, and saying, “this person makes no sense, if they were in a world where the writers weren’t cheating for them,” or something to that effect, you have the basis for a critical parody.

If you’re starting from a point of looking at a fictional character, and saying, “I want to use this character for my work,” you need to stop. Step back. Identify the reason the character appeals to you. Extract that concept. And build a new character around that concept.

Everyone takes inspiration. You’ll see, read, or experience something, and say, “I want to use that somehow.” That’s natural. What you don’t, ever, want to do is blindly copy. Bring your understanding or perspective into the piece. Hold it against other factors. Say something for yourself about whatever caught your attention in the first place. Express your ideas, not some other writer’s idea that caught your attention.

-Starke

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I have a question to followup your latest post. Would the situation change at all if there were original characters, in an original setting, writing a fanfic about a copyrighted work?

With the important reminder that, I’m not a copyright attorney, or any kind of lawyer, for that matter. I’m not saying this as some kind of waver, it’s important to remember, when it comes to the law, my opinions are basically one step above amateur. I took some pre-law classes in college, but opted out of “high school with alcohol poisoning.”

As with all copyright law, this kind of a thing is incredibly contextual, and I’m going to err on the side of caution with this.

If it’s just that you have a character who’s writing a fan fiction of something, then it should be fine.

If you’re intending to also write large excerpts of the fan fiction, include them in the story, and you’re writing professionally, then it’s a little dicier.

The status quo for fan fiction has been, it’s okay to write it, but you can’t sell it. This is entirely based on the whims of the rights holders, and a few are really touchy about fan fiction.

If you’re writing professionally, and this is a story you want to sell, my advice would be to create your own material for them to write a fanfic of. This means you need to do three things. Write the frame story, write the subject matter for the fanfic, and write the fanfic itself. Ironically, this isn’t legal advice, it’s strictly from a writing perspective.

When you’re writing a framed narrative, your themes and concepts need to move fluidly between the frame and the story inside. When you’re writing a fanfic based on a real property, you’re already partially confined by the themes intrinsic to that material. When you’re writing all three, you have full control over the thematic content.

While it might seem easier to write a fanfic for a show you love, it will actually be easier on you to create all three stories from scratch on the spot.

-Starke

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In my story my character is transported to a fantasy world and there she learns about magic. Coming from this world and being a gamer, she remarks that some of the magic is like Skyrim. But I said Skyr*m, do you think I’d get sued? Or is that okay?

Just using the term as a one off line would probably be De Minimis, though I’m not a Intellectual Property Rights attorney, so take this with a grain of salt or twenty.

There’s three parts to Intellectual Property Law; copyright, trademark, and patent. Copyright is the intellectual property law that protects what you

create artistically. “I wrote/painted/created this piece of art, it is mine.” Trakemark protects what you sell, at market. “I’m selling this product, you don’t get to sell your own product while pretending to be me.” Patent is the protection of inventions and innovation. “I made this thing, it does something unique, it’s mine, you can’t take my work and leave me with nothing.” None of these work exactly that smoothly, but it’s worth keeping in mind.

Incidentally, censoring out a random vowel does nothing, legally. If you’re going to say “Skyrim,” then just say it. There’s two ways this can go, copyright or trademark.

It’s worth pointing out that, yes, you can be sued, even without naming your setting. Fair use is an “affirmative defense.” This is the legal equivalent of saying, “yes, I did what they’re accusing me of, but the law they’re using don’t apply because of this.”

In copyright, Fair Use is usually examined through four (five) tests. Is the work transformative? What is the nature of the original work? How much did you take? What effect does the alleged infringement on the market for the original work? And, sometimes, what is “the character” of your use?

The transformative test is basically asking if you’re simply lifting copyrighted material wholesale. For a work to be transformative, it needs to alter the copyrighted material in some way fundamentally alter the nature or context of it. The best example of this are reviews and critique, which will take a copyrighted work, and then discuss it in detail.

Historically, simply lifting characters or settings, and using them in your own material, without substantially reworking them is not transformative, and as a result is copyright infringement. So, if you land your character in The Land of Skyr!m, and do nothing to differentiate it from the Tamerilic province, that’s going to be infringement. If you have a vaguely viking themed setting, and your character from the outside world wanders in, looks at the architecture, mountains, or whatever, and says it “reminds them of Eastmarch in Skyrim,” that’s probably not going to be infringing.

The nature of the original work is tested to determine if there’s a compelling interest to protect it. This one’s actually fairly complex, but what it basically means is that copyright law is more protective of art than non-fiction.

The amount of the work taken tests to see, exactly that. Did you simply copy down the bulk of the copyrighted work. This gets a little more complex in that you can potentially take “the heart” of the work, in a fairly concise excerpt, and actually commit copyright infringement.

Amusingly enough, if Pride and Prejudice wasn’t in the public domain (meaning the copyright has expired) Pride and Prejudice and Zombies would be an excellent example of a situation where the work passes the transformative test, but completely fails the substantiality test, because it copies the entire text. Similarly, if I’m remembering correctly, most annotated texts face the same issue, even though they substantially expand the work’s context.

The effect of your work on the copyrighted work’s market is tested to determine if you’re actually harming the copyright. Either by not licensing the work, or by offering an alternative to the copyrighted work. If you’re playing a song at a commercial venue without paying the rightsholders, that’s infringement, because it should have been licensed, even if you’re not making money off of it. In cases where you’re providing an alternative to the original material, that’s still potentially infringing. The example above would be annotated works, where they function as an effective alternate option to reading the original material. A heavily cut down version of the text could also function as an alternative.

The example that comes to mind are film remixes, where an entire film is condensed into 10 to 15 minutes without fundamentally loosing the substance of the film. This is slightly different from taking the heart of the work, which, in theory, can be achieved by taking a single line or scene.

The final test, is the character of use, this is examining what you’re doing, in a larger sense. If you’re using excerpts of copyrighted material for educational purposes, then it is less likely you’ll be found infringing. Similarly, if you’re engaging in non-commercial use, such as fanfiction, then this is the test where it applies. It’s worth stressing, simply engaging in non-commercial use, does not automatically exempt you from copyright infringement.

So, that’s copyright. Simply using the name Skyrim, and saying, “yeah, this reminds me of Skyrim,” without actually attempting to copy or emulate the setting should be fine. Just like you can have character say they enjoyed watching Star Wars, or Star Trek. You can also, certainly, have characters talking about about copyrighted settings without an issue. The thing you can’t do is actually use those settings for your own work. (Again, remembering that fanfiction exists in a sort of legal limbo. Without a prior agreement from the rightsholders, it is technically infringement, but there’s no value to be had from litigating. Though that’s never stopped the Tolkien Estate from going after everyone that looked at them funny.)

Trademark also has its own fair use defense, and it operates under completely different rules. Again, it’s an affirmative defense, so it only comes into play after you’ve been sued, but it’s the same basic idea, “I did something that looks like infringement, but it’s not.” Also, fair warning, I’m a lot less versed in trademark law, so there’s probably going to be some errors here.

As mentioned above, Trademark law is primarily concerned with ensuring that brand confusion does not occur between two products. Fair use usually operates off the idea that you did use another company’s trademark, for the purposes of referencing their mark specifically.

That means you can’t sell products under that name, and you can’t claim to be endorsed by the trademark. You can still say something reminds your character of Skyrim, just like you can say they wanted McDonalds, a Coke, or any number of other consumer products. That’s not what Trademark is designed to prevent. What you can’t do is sell your book as Skyrim, or even as “a Skyrim story.” Not that it matters, but the part where you also wouldn’t be using the font from Skyrim’s logo is actually relevant to trademark fair use.

I’m actually conflating normative and traditional fair use in Trademark law. Strictly speaking, normative fair use is when you reference someone else’s mark, while traditional fair use is when you’re referencing your own product, and it could be mistaken for the registered trademark. So the tests are slightly different between these two situations.

Again, if you’re just having a character say that the world they’ve found themselves in reminds them of Skryim, that would be normative fair use. If you were trying to market your book under the name Skyrim, or the “a Skyrim story” mentioned above, then that would be traditional trademark infringement.

-Starke

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