I am trying to understand the dos and don’ts of writing a fictional novel, in so far as borrowing ideas and concepts from existing literature and media is concerned. Specifically, at what point does “reuse” of an existing set of ideas, concepts and characters fit into the commonly-accepted definition of plagiarism?
For example, the ‘xenomorphs’ from the aliens franchise was a hugely successful, original idea. So if one writes a novel that is based on the same ‘universe’ as the alien franchise, to tell an original story, would that be immediately generate a call to the plagiarism police? Or is there a fine line that needs to be crossed before the creators – whichever person or entity that is – would sit up and take notice?
How about retelling an existing story with an alternate timeline, or reuse a bunch of characters and make up your own story? I am not talking about blatantly copying words and sentences from an existing published work, just taking existing characters, the background “universe”, plot elements and other aspects to tell a unique story around it.
Obviously for an author, reusing existing plot elements from a popularly known work frees him/her from the need to extensively describe the story’s setting – effectively he rides on the work’s popularity to increase his own. Would that be illegal / unethical?
I am interested in the social and legal status and acceptability of such ‘derivative’ works. It appears that courts that decide plagiarism charges often use differing benchmarks on a case-by-case basis.
If the existing literature is still under copyright (i.e. not so old that it is in the public domain), you can’t use characters from that work in your own writing. Cite: Can I use someone else’s characters in my new original story? (See also this column, which mentions how “fan fiction” fits into the picture.)
It’s important to keep in mind that plagiarism is not the same thing as copyright violation. Plagiarism in and of itself is not a crime, although it is enough to ruin a writer’s reputation and in most cases plagiarism would also be copyright violation.
Copyright violation is kind of a tricky legal area and I am not a lawyer, but what you describe in the OP sounds like a pretty clear violation to me unless the original work that you’re borrowing characters, settings, etc., from is in the public domain. If you want to write a sequel, prequel, modern day retelling, or other alternate version of for instance a Jane Austen novel then you’d be in the clear as long as you were open about what you were doing. In fact, this has been done many many times by many many authors already.
If you just want to write Alien fanfiction and post it online for free then it’s unlikely that anyone will come after you, but if the copyright holder feels like making an issue of it then you could be told to take the stories down. If you didn’t comply, you could be sued for copyright violation and would almost certainly lose. Some fanfiction writers have managed to rework their stories and get them published (mostly as fairly obscure romance novels, but the bestselling 50 Shades of Grey originated as Twilight fanfiction), but this involves changing things enough that the story is no longer obviously a fanfic. I haven’t read 50 Shades, but it’s my understanding that it’s not just Twilight with BDSM sex scenes but that there are no vampires or werewolves, the characters all have different names and physical descriptions, the heroine is several years older, and it’s not set in Forks, WA.
I am not a lawyer. However, here’s what I know: Ideas are not copyright. Their execution is.
You can’t copyright ideas, only execution. However, if you have a whole string of ideas that are very, very similar to someone else’s string of ideas, AND your book becomes wildly successful, there is nothing stopping the person who got there first from suing you and causing you to spend a bunch of your money and possibly settle.
I think there was such a lawsuit over The Da Vinci Code.
But there’s a lot of leeway when it comes to ideas.
You can’t take someone’s characters unless they are in the public domain (Sherlock Holmes, for instance–I think). You can take historical characters, i.e., if you wanted to write a book about Butch Cassidy and the Sundance Kid, you could do that. But if you laid out the scenario exactly as it was in the movie, or exactly as it was in the Pinkerton book that was source material for the movie, it might be seen as a derivative work or even as copyright infringement.
If you think you can write a work of fiction that doesn’t have any concepts or ideas that have ever been used before, good luck. There are bound to be some plot elements in common, because apparently there are only 36 plots. It doesn’t really sound fair to take a fictional universe that someone else has created (say, the Land of Oz) and use that, but people do it and get around it somehow (out of copyright, maybe).
The Twilight/50 Shades books are probably a good example. The 50 shades author start with it as a Twilight fanfiction, but ended up changing a lot–names, places, as someone said, no vampires. (I haven’t read either series so I have no idea how much/little was used.)
If what you ultimately want to do is publish it and make a big splash, you’ll probably want to consult a lawyer when you get to that point.
If you want to rewrite somebody’s story because you have a different take on it, or you can do a better job, then change the characters’ names, change the name of the universe, change the unique details of the universe, and write your story. If all that changing doesn’t work for you, then what you’re doing is probably plagiarism.
There was a lawsuit brought against Dan Brown by Michael Baigent and Richard Leigh, the authors of the book Holy Blood, Holy Grail, although the judge sided with Brown. IIRC, in that particular case it was significant that Holy Blood, Holy Grail had been published as a non-fiction work while The Da Vinci Code was a novel. While a non-fiction book is copyrighted just like a fiction book, a non-fiction author can’t claim ownership of people, events, and settings that they didn’t create themselves. Brown’s use of ideas from Holy Blood, Holy Grail was thus considered historic research and not copyright violation. Brown would have been in trouble if he’d copied or closely paraphrased from the text of Holy Blood, Holy Grail or if his novel had been based closely on another work of fiction. (I’m imagining something like The Dumbledore Code.)
That’s copyright infringement. It would be considered a derivative work and can’t be published without permission.
Note that Alien itself was sued for infringing on A. E. Van Vogt’s copyright for “Black Destroyer”; it was settled out of court.
It depends. How much of the universe? If you use the names of corporations and characters from Alien, then you’re infringing. If you mentally set it in the same universe, but use different corporations and different characters and a different villain, that’s fine. There’s no simple answer because there are too many factors involved.
Both: it’s copyright infringement, and it’s taking a shortcut.
That’s because every case is different. What is infringed? How much? If the character is named “Riply” instead of “Ripley” is it the same character?
There was an something by Larry Niven (science fiction author) where he mentioned off-handed chasing down and having web sites remove porn fan fiction involving some of his characters; he mentioned, for example, one of the things that offended him - that large carnivores do not have large genitalia because when hooves and claws are flying, you don’t want anything big enough to swing into the way. Besides cheapening his work, it was just plain evolutionary wrong. Of course, this was over a decade ago - I imagine trying to find and cleanse every fan site today would be Sysphean.
If you use, say, “Harry Potter” you are basically building on the work done by Rowling, and piggy-backing on the success she created. Same if you use Hogwarts, the Avatar planet, or even just Batman’s butler Alfred. Someone created those items, and when you use them, you expect people to fill in the details in their mind from their existing cultural experience of the originals. Let’s say. the story is set instead in Oxbridge prep, or the distant planet Buttosol, with Joe Smith as a character. If the story could not work this way, without specific cultural references someone else went through the effort to create (and owns) then you are copyright infringing.
If you instead use Harvey Poster as your character, or the school of wizardry at Porkhumps, but people can still see the cultural reference (and it’s not parody) and this is still an essential part of your story, then you essentially doing the same thing. A rose by any other name…
However, Battlestar Galactica was sued by the Star Wars people because they thought the idea of little ships dogfighting once launched from a big ship was stealing from them. They lost, the two were not similar enough. So it depends… Rowling has not made it impossible to have kids in a school of wizardry, just that it better not be too much like hers - the houses, the creepy teachers, the English boarding school atmosphere, the flying ball game - don’t copy some of the elements that distinguish hers. Similarly, DC has not made it impossible to have superheroes, just don’t make them orphan aliens in red-and-blue with a letter on their chest.
How close can you get? Every case is different, it depends how good your lawyer is… and theirs. Rowling owns her own jet, I think you don’t want to match her lawyers dollar for dollar.
This case was not even about character or setting, but about a reference book. The ultimate decision seems to have been based on the fact that the reference book copied too much detail from the original works, side-stepping any decision on whether reference material itself infringes.
Plagarism, as I understand from college, takes two forms. The first is to lift passages or whole chunks from someone else’s works without credit, what we know as stealing or copying. This is easy to pick up on - copied or not? Changing a few words does not hide the situation if sentence structure, certain adjectives, etc. make the whole piece seem to be copied. The importance of it depends on how long the passage(s) in relation to the whole, or if the copied piece is the key part. In academic works, copied parts should be quoted and footnoted.
The other plagiarism relates to stealing ideas without attribution. If you have to write a paper on “Star Wars as the Oedipus Legend” and all you do is copy and re-word an existing paper… you are plagiarising. It does not matter if you are completely rewording the arguments in that paper, if it appears that you simply took someone else’s work and rewrote it so that it was yours, then that too is plagiarism. The concept in academia is to come up with original thought, so parroting someone else is counterproductive.
Of course, the result of copyright violation can be lawsuits, legal bills, and financial penalties; the punishment for plagiarism in academia is expulsion and possible revoked degrees; in the publishing world, it can mean being fired. Which is worse? Depends on your point of view.
(Asimov once talked about a mystery novel he wrote, set in academia. The villain was falsifying data, a crime as bad as plagiarism on the science side. He explained that the scientist killed someone who found out. The average person, he said, would ask “What, is that all? Hardly seems like a reason to kill.” Fellow scientists, meanwhile, he said, would avoid him like the plague and refused tot talk to him after he described the plot. Different points of view.)
Copyright violations are typically matters of substantive civil and/or criminal law (you can get sued or prosecuted in real courts). Plagiarism is typically an issue of contract law and/or organizational codes of conduct. For example, if you enroll in a Master of Arts in Creative Writing degree program, the Honor Code will typically tell you what their definition of plagiarism is, what you are allowed to reuse with citation, what you are allowed to reuse without citation (typically scenes a faire and common knowledge), what you can’t use at all, and how accusations are handled/procedural matters. So if you are given an assignment to write a novella on life in the US South and you borrow so much from Tom Sawyer that it constitutes a substantive violation of the university honor code, you could end up failing the class or even being expelled but probably aren’t going to be successfully sued or prosecuted because copying Tom Sawyer isn’t itself illegal, unlike copying Star Wars or or Twilight. If you signed a contract with a publisher to write an original novel but you submitted something that was too close to The Secret Garden, you might be sued for not fulfilling the contract but it would be a breach of contract suit - not a copyright violation or “plagiarism” suit.
Also, stories set in English boarding schools have a long and storied history. Prefects, rival houses, pranks, emphasis on organized sports competition, storied history of the school itself, sneaking out after lights out, being a new fish in a complex social environment, intricately described uniforms, and legends of these old hallowed halls go back decades.
Authors included Thomas Hughes (out of copyright most, if not all places), Talbot Baines Reed, Angela Brazil, Dorita Fairlie Bruce, and Anthony Buckeridge.
Arguably, Orson Scott Card’s Ender’s Game borrowed a lot from English boarding school stories.
I know of one relevant case and it seems to contradict some of the claims upthread. Of course, the fact that some is not sued does not prove that he couldn’t have been.
Don Kingsbury (a former colleague of mine in fact) wrote a fine sci-fi story set in the universe of Asimov’s foundation. He changed all the names, of the planets, people, etc, and, in particular of my namesake, who was simply called The Philosopher. But the universe was quite obviously the same. As an example “Trantor” became “Splendid Wisdom”. Isn’t that a bizarre name for a planet? I asked him about the change of names and he said that, yes, it was to avoid copyright violations. I assume he consulted a lawyer about this. The book is, IMHO, better than Asimov’s. It is called Psycohistorical Crisis and I recommend it.
If Don is right, then you could write a novel about a magic school called Beautiful Wands (well maybe that would violate Beaubatons) that you got to from platform 3.141592 of Euston Station, that had four houses called Dragonden, Snakey, Crowfoot, and Tornado, had a game called Wretched (that’s my private opinion of Quidditch, BTW) and the you could never quite figure out on whose side the headmaster of Snakey was on, and an evil genius named Pleintot.
Well maybe you should use totally unrelated names instead. But Kingsbury got away with what he did. Short of consulting a lawyer, I am not sure.
Some people do have an inflated idea of plagiarism. I once was accused of plagiarism by some French asshole, just for working and publishing a paper in the same area he did. My mistake was publishing in a French journal. His work was “published” in an uncirculated journal of which he was the sole editor. But I ignored him and he shut up.
A lot of people have remarked on the similarities between Rowling’s Harry Potter and DC Comics “Books of Magic,” with a boy magician named Tim Hunter, who looked a lot like Harry. There were many similarities.
A skillful writer can “file off the serial numbers.” No one can corner the market on YA novels about boy magicians. Make your kid a Chinese national living in Hong Kong, rediscovering his grandfather’s ancient magical formulae. Or, if that’s been done…do it again, but differently.
(I was sorry to read, in this thread, that the Van Vogt estate had sued “Alien” because of the similarities to “Black Destroyer.” This, to me, is absurd and obscene. The similarities are minor! The differences are broad and profound. Coeurl was a scary space cat with mental powers; the xenomorph was just a big scary space-wasp. If copyright is that broad, no one can ever write anything, because some other work will easily be able to be shown to be similar.)
This seems consistent with claims made in this thread to me. Ideas cannot be copyrighted, only specific expressions of ideas. If the new author changes enough details, their work may not be in violation of the original author’s copyright. Just spending a few minutes (hours…days…) on TVTropes is proof enough that many different creative works have used the same ideas over and over again.
You can write whatever you want, but I don’t think a legitimate publisher would touch such a novel. An idea like “mundane object hides portal to a magical world” cannot be copyrighted, and is at least as old as The Lion, the Witch, and the Wardrobe. But “hidden between platforms 3 and 4 in a London rail station is a portal that will allow you to travel to a magic school” is a very specific version of this idea and one that’s easily recognizable as having been previously used in an extremely well-known series of books.
A major exception to the above is that if this hypothetical book were a parody of the Harry Potter series then that could fall under fair use. I say “could” not “would” because just saying something is a parody isn’t an automatic “Get out of lawsuit free” card. J.K. Rowling could still sue, and depending on the nature of the parody (does it use humor to comment upon the Harry Potter series or is it merely an imitation? how much of the parody was lifted directly from Harry Potter?) she might win.
Was Kingsbury’s story really nothing but a bunch of specific ideas copied from Asimov but with new names? If so, he’s lucky to have gotten away with it, but I’d advise against trying the same trick.
Yeah, I rememeber reading a plethora of English Boarding School stories, from Billy Bunter to Stalky & co, thanks to books sent to me by my British relatives.
Again, it’s the cumulative effect of each idea - plus how much you spend on lawyers.
Wizard boarding school?
Very like English boarding school?
Orphan protagonist?
Exceptional powers?
Friends - bonus if one’s a girl and there’s pubescent sexual/relationship tension.
Magic bird delivery system?
Obnoxious wizard “government” and bureaucracy? Oblivious to danger?
Epitome of evil repeatedly out to get our hero?
No one idea is making a story a copyright violation, but consider the cumulative effect as more and more of the story has uncanny similarities…
Also, a billionaire author and the movie studio that licenses her properties have a serious interest in keeping the riff-raff out of their garden, and the lawyer expense is chump change. Asimov or his estate, OTOH, may not have cared too much to fight over a minor and not very explicit co-opting of their universe; they may not have felt the likelihood or benefit of winning worth the expense.
As for Van Vogt and Alien, keep in mind this is not surprising. Every successful high-budget movie is often sued by anyone whose obscure or unpublished fiction has some passing resemblance to the plotline, characters, or design. http://www.indieclear.com/film_lawsuits.htm
Hollywood is basically a river of money, and everyone who sees the stuff flowing by wants to try and dip their bucket in.
All the responses to this thread have been incredibly useful, thanks to everyone who responded!
Let’s say for the sake of argument here that the intent is to tell a substantially different story that reuses the main elements of let’s say the Alien franchise. And lets say the intent is not to add to a body of fanfic, but to eventually publish in some form, though perhaps not for profit.
And that is where the ambiguity lies. What is “copyrightable” about the alien monster? Black slimy body? Acid for blood? Nasty attitude? Bad teeth? Mouth within a mouth, or a serrated tail blade? All of the above? I can make the body red, describe the acid as a solvent, rename a bunch of characters, and invent a suitably creative name for the species itself. One can morph all the outward details, but the essence of the idea being reused remains - that is the purpose of the reuse itself, because it adds something critical to the storyline.
Based on what has been said upthread, even with all this camouflage, I would probably end up with a lawsuit.
I think the crux is that courts are run by people, not computers. Laws generally use words like “extremely similar” or “would be considered extremely similar by a reasonable person”, I don’t know if those specific words are in copyright and trademark laws, but it’s not as if they have a “87% similarity” line where it’s not okay, and they go through the book with a list of characters and plot elements, a thesaurus, and a pen and check off things and then tally it up at the end.
It’s one of those “I know it when I see it” things, and unfortunately with courts being courts, if you’re a small fry ripping off something big you’ll probably lose. Not because the judge won’t rule in your favor, necessarily, but because the people you’re copying from/paying homage to/whatever have the resources to drag out the court battle until it’s not worth it for you to continue anymore.
Morphing the externals of a story to make it (almost) unrecognizable might save you from the plagiarism police, but you wouldn’t accomplish what you set out to do, either.
Take for example Battlestar Galactica. With its vast operatic theme and richly complex storylines, there is a lot that could be “retold” about the show. Characters can be tweaked, events rearranged in time, and of course climaxes reimagined. A lot can be done that would qualify as a creative retelling of elements of a popular story. Maybe even turn out better than the original (which left a lot to be desired). But you can’t escape mentioning the cylons. The retelling is no good without the protagonists and the villians in their recognizable roles. Even if you rename everything and everybody, an intrepid author would need to somehow allude to the original, draw parallels to it, to tell his tale.
And that, it appears, lands him right in the middle of plagiarism territory.
The difference between just ripping off a story or a character to incorporate into your own, and “creatively retelling” a story is that in the latter case the author acknowledges that the work is a retelling, and indeed needs that to be known because his retelling does not work without reference to the original.
Given that the author chooses to “retell” a story and makes no claim for having invented the broad arc of the storyline and/or the character profiles, does that place him in a better position vis-a-vis the copyright holders and/or anyone who would care, including the courts? What if substantial money was involved, or not? I am sure there must be precedents where a subsequent retelling was better than the original, and some transfer of wealth happened. The story remains alive, everyone profits, and the fanbody gets a fresh look at the story. Everyone wins.
If the author just rips-off something and palms it off as brand-new, I can imagine how that will piss off those who created the original.
However, the deeply hilarious Harry Potter and the Methods of Rationality seems to have gotten away with it. Whether that’s because there’s an exemption for satire or because Rowling herself seemed to rather like it, I don’t know.