# Copyrights and using literary characters **URL:** \ **Category:** Factual Questions\ **Created:** [May 1, 2012, 12:48pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504 "2012-05-01T12:48:59Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![Cagey\_Drifter](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@Cagey\_Drifter](https://boards.straightdope.com/u/Cagey_Drifter)\ **Post date:** [May 1, 2012, 12:48pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/1 "2012-05-01T12:48:59Z")
Some authors have been able to write books using literary characters developed by other authors without apparent penalty (ex. “Pride and Prejudice and Zombies”). But how old does a character have to be before someone can do that? ---
**Author:** ![MobiusStripes](https://avatars.discourse-cdn.com/v4/letter/m/d6d6ee/32.png) [@MobiusStripes](https://boards.straightdope.com/u/MobiusStripes)\ **Post date:** [May 1, 2012, 1:45pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/2 "2012-05-01T13:45:35Z")
I’m pretty sure Pride and Prejudice is well outside of copyright regulations, so that’s probably a big factor. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 2:22pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/3 "2012-05-01T14:22:06Z")
Some authors have licensed characters from the respective copyright owners. Some authors have created parodies. Some authors have waited until copyright protection has expired. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 1, 2012, 4:39pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/4 "2012-05-01T16:39:02Z")
Public domain for most purposes is anything published before Jan. 1, 1923. If a character started before 1923 but was still being written after 1923, then you cannot assume public domain. IOW, you can republish all the Sherlock Holmes works before 1927’s _The Case-Book of Sherlock Holmes_, but you can’t use the character without permission of the Doyle estate. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [May 1, 2012, 4:51pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/5 "2012-05-01T16:51:25Z")
A related question. It’s never been clear to me why a character is subject to copyright. Trademark makes sense, but not copyright. Copyright protects a specific fixed form of creativity, but not concepts. Are people just being lose with the terms “copyright” and they actually mean “trademark”? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 5:35pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/6 "2012-05-01T17:35:15Z")
No, characters can be protected under both trademark and copyright law. In many cases a character is considered in all his or her characteristics to be a creative expression in and of itself, especially of that character has been given visual form. ---
**Author:** ![Thudlow\_Boink](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thudlow_boink/32/320_2.png) [@Thudlow\_Boink](https://boards.straightdope.com/u/Thudlow_Boink)\ **Post date:** [May 1, 2012, 6:08pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/7 "2012-05-01T18:08:09Z")
> [@Exapno\_Mapcase](#): > > IOW, you can republish all the Sherlock Holmes works before 1927’s _The Case-Book of Sherlock Holmes_, but you can’t use the character without permission of the Doyle estate. I’m a bit surprised to hear that, with all the post-Doyle Sherlock Holmes stories and novels that have been written by lots of different people (not even counting the parodies and not-so-subtle copies). Though that could just mean the Doyle estate is liberal about granting permission. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 6:22pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/8 "2012-05-01T18:22:35Z")
For example: _Nichols v. Universal Pictures Corp._, 45 F.2d 119 (2d Cir. 1930), said that a character might be protectable under copyright law if it is developed with sufficient specificity of traits. _Warner Bros. Pictures Inc. v. Columbia Broadcasting System Inc._, 216 F.2d 945 (9th Cir. 1954), said that a character could be protected under copyright law if the character itself constituted “the story being told.” Later decisions have rejected _Warner_’s ruling that literary characters could not be protected. _Walt Disney Productions v. Air Pirates_, 581 F.2d 751 (9th Cir. 1978), said that comic book characters were protectable. _Olson v. National Broadcasting Corp._, 855 F.2d 1446 (9th Cir. 1988), said that characters could be protected if they were “especially distinctive” or if they were “visual depicted” on TV or in a movie. _Anderson v. Stallone_, 11 U.S.P.Q.2d (BNA) (C.D. Cal. 1989), found that the character of Rocky Balboa was protectable under the “story being told” test as well as the less stringent test for visually depicted characters. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [May 1, 2012, 6:44pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/9 "2012-05-01T18:44:48Z")
Thanks, that makes the legal theory a little more clear. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [May 1, 2012, 6:45pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/10 "2012-05-01T18:45:58Z")
> [@Pleonast](#): > > A related question. It’s never been clear to me why a character is subject to copyright. Trademark makes sense, but not copyright. Copyright protects a specific fixed form of creativity, but not concepts. > > Are people just being lose with the terms “copyright” and they actually mean “trademark”? No. While more literary characters are trademarked these days (usually when they appear in movies), it’s still a very small percentage. It’s subject to copyright because anything using an existing character is considered a “derivative work.” If this didn’t exist in the law, then Hollywood could make a movie of any book they wanted without payment to the author (authors can’t afford to trademark characters until they reach Rowling levels of sales). So any works that feature the same character runs into potential copyright issues if you write about the character without permission. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 7:14pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/11 "2012-05-01T19:14:21Z")
> [@RealityChuck](#): > > It’s subject to copyright because anything using an existing character is considered a “derivative work.” No, it’s subject to copyright law, because a character itself can constitute an original and creative expression. > [@](#): > > (authors can’t afford to trademark characters until they reach Rowling levels of sales). This reflects a fundamental misunderstanding of how trademark law works. It’s simply not true. Authors don’t have “trademark” characters in order to be protected. In fact, I’d advise you to forget the word “trademark” as a verb, because it simply doesn’t reflect the way the law works. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 1, 2012, 7:45pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/12 "2012-05-01T19:45:49Z")
> [@Thudlow\_Boink](#): > > I’m a bit surprised to hear that, with all the post-Doyle Sherlock Holmes stories and novels that have been written by lots of different people (not even counting the parodies and not-so-subtle copies). Though that could just mean the Doyle estate is liberal about granting permission. It’s changed radically over the years. It once was notorious for for denying everything, which is why you see so few in the first 50 years after Doyle’s death. In recent years they’ve loosened up considerably. Part of the story is told at the [official site](http://www.sherlockholmesonline.org/TheEstate/index.htm). Ah, families. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 8:56pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/13 "2012-05-01T20:56:46Z")
> [@Pleonast](#): > > Thanks, that makes the legal theory a little more clear. Here’s another: _Gaiman v. McFarlane_, 360 F.3d 644 (7th Cir. 2004), ruled that the Cogliostro, Mediaevel Spawn, and Angela characters from _Spawn_ were expressive works protected under copyright law in which Neil Gaiman could, at the very least, claim co-authorship. > [@](#): > > McFarlane argues that even as dolled up by the penciller, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. > > … > > Although Gaiman’s verbal description of Cogliostro may well have been of a stock character, once he was drawn and named and given speech he became sufficiently distinctive to be copyrightable. Gaiman’s contribution may not have been copyrightable by itself, but his contribution had expressive content without which Cogliostro wouldn’t have been a character at all, but merely a drawing. The expressive work that is the comic-book character Count Nicholas Cogliostro was the joint work of Gaiman and McFarlane—their contributions strike us as quite equal—and both are entitled to ownership of the copyright. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [May 1, 2012, 9:51pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/14 "2012-05-01T21:51:48Z")
I was going to ask a question sort of along the same lines. Instead of opening a new thread I’ll try it here. Is there a copyright problem if I write a character who as part of his background I make him into a fanboy of some sort. Let’s say he is a Star Wars geek and I mention all the characters and other Lucas properties in the book. Not as characters themselves. Any problem there? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 1, 2012, 9:53pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/15 "2012-05-01T21:53:08Z")
Not that I’m aware of. ---
**Author:** ![Apollyon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/apollyon/32/4238_2.png) [@Apollyon](https://boards.straightdope.com/u/Apollyon)\ **Post date:** [May 1, 2012, 10:09pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/16 "2012-05-01T22:09:54Z")
> [@Acsenray](#): > > _Walt Disney Productions v. Air Pirates_, 581 F.2d 751 (9th Cir. 1978), said that comic book characters were protectable. An (IMO) amusing case around this sort of area involved Marvel Comics filing a lawsuit against the _City of Heroes_ video game creators because the game allowed players to create characters whose name and/or look infringed Marvel’s IP. ([Wiki article on this](http://en.wikipedia.org/wiki/City_of_Heroes#Suit_by_Marvel)). I was particularly amused by: “Marvel subsequently admitted that some of the allegedly infringing characters cited in the complaint had been created by Marvel’s own investigators.” :smack: ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [May 1, 2012, 11:22pm UTC](https://boards.straightdope.com/t/copyrights-and-using-literary-characters/620504/17 "2012-05-01T23:22:02Z")
Don Kingsbury, a former colleague of mine, wrote a superb book called Psychohistorical Crisis that was obviously set in Asimov’s Foundation universe. He changed all the names and told me it was to avoid copyright issues. His names were better (or at least more memorable). For example, the Hari Seldon character (whom I have obviously identified with) was simply called The Philosopher and the planet that played the role of Trantor was called Splendid Wisdom. There was a civilization called (for no evident reason), The Frightfulpeople. Oddly enough, Kingsbury included a timeline that seems to have been lifted unchanged from Asimov. I’ve wondered about that, but never thought to ask him.