I’ve seen in some stories such as fanfic a little piece of writing that basically says “I’m using these characters and ideas for my own fun and I acknowledge that they belong to George Lucas” or somesuch. Is this guaranteed to not get me accused of anything? Is it safe to assume that my podunk little blog isn’t likely to draw someone’s attention if I use, say, Superman? Or am I not asking the right questions?
Relevant questions are:
- do you make money from your writing?
- does your writing reduce the income or potential income of the owner of Superman copyright?
Some content owners care, others don’t. In general, fair use is determined on a case-by-case basis if the copyright owner decides to sue you; it’s hard to say beforehand.
You can read the law and guidelines:
But in the end it’s up to the courts and lawyers.
Regarding Star Wars specifically, they’ve recently opened up a bit and even encouraged fan fiction, but it’s unknown how that will change after their purchase by Disney.
Is there an actual concrete answer? Dave Sim used a “Wolverine” look-alike, the “Wolveroach” in “Cerebus the Aardvark” for a good long while, including several covers. The character was so like Wolverine that it would be very possible for someone to mistake the two. Eventually, Marvel wrote to him to tell him to stop. Meanwhile, they had a character, “S’ym,” who looked a little like Cerebus, but was significantly different, and, in addition, was a very minor character, only appearing once in a long while. Sim argued that the two cases were the same. But would a reasonable person equate the two?
Had Sim done it just once, Marvel would likely have said, “An homage: we can accept that.” By pushing it, he aroused their legal attention.
Memo: don’t push it!
There’s the legal answer and the real world answer.
Legally, no way. Copyright is by definition the control of your copyright, and the creator or owner (not always the same thing) has pretty much absolute control of the words, the characters, the settings, and other specifics. Fair use is limited to tiny portions to be used for reviews, critical discussions, or promotion of the original (as with book covers, say).
Real world, probably. Creators have as many policies on fan fiction as there are creators. The world of fans is vastly larger than they can control, and most fan fiction is harmless. Not all - the noted case is that of Marion Zimmer Bradley, which soured many writers on fan fiction for a while. That was 20 years ago, though, pre-Internet, when there was only one wild in the wild, wild, wild, wild west.
Copyright is also different from trademark. Media creations are usually protected by both. Trademarks must be vigorously protected, by law, and so the use of images is often more problematical. The questions that t-bonham asks are more appropriate for trademark law than for copyright law. Copyright owners can pick and choose their cases without worry of losing their copyright, meaning they can go after one person even if a hundred others are doing the same thing.
Bottom line, no wording of any disclaimer means a thing legally. You either are in violation or you aren’t. And the copyright owner either will care or not. Superman fan fiction is 99.9% unlikely to raise any eyebrow by a fraction of a millimeter. But it’s not fair use.
I thought (possibly incorrectly) that copyright protects an expression of idea, not the idea itself. I did not know that copyright protected characters and settings, only the words used to describe them.
For example, do movie producers have to pay a royalty to Ian Fleming’s estate for *Skyfall *even though the plot is not based on any of his books?
I understand that trademark is a different issue, and many savvy authors have taken to trademarking their characters.
Satire is protected (thanks to Mad Magazine and Bill Gaines - really) but using characters, place names etc. from another’s copyrighted work does not fall under ‘fair use’ at all.
Fair use is a doctrine that certain limited amounts of copyrighted material may be used in scholarly settings. The amount that can be used, in each instance and in total, is limited by strict (if somewhat obtuse) rules. The doctrine is meant to promote free and accessible scholarly and academic use of existing work without infringing on prior copyrights. It has nothing to do with using copyrighted material to make commercial works. (Yes, that line is a little blurry - but the difference should be clear.)
You cannot copyright ideas, just as you can’t copyright facts, or titles, or short sayings (do not mention the weird case of Ashleigh Brilliant). Even so, some expressions are held to be creative and original in themselves. The character of Luke Skywalker or Harry Potter or James Bond cannot be appropriated even if you handle them differently. The planet Tatooine or Hogwarts or M’s office would probably not pass muster. The problem is that no bright lines appear anywhere in the law. Every single case has to be argued individually based on its unique circumstances.
Absolutely. Even the Casino Royale spoof of 1967 held the rights to use of the book, although they used nothing but the title and names. You can’t use James Bond in any way without permission. Sherlock Holmes is in a similar position, although it’s being challenged in the courts because of certain oddities in its history.
The point about trademarking a character is that you have to use that trademark. You can’t let it sit there as a record on file. Use it or lose it. That’s a lot easier for a visual character than a written one.
The protection of fictional characters has some good information on the subject, but only scratches the surface. One of the big problems is that almost no case ever goes fully through court; it’s wildly too expensive for everyone concerned to let it do so. And nobody can ever figure out what any judge might rule so it’s better tos ettle than to lose.