Writing Gooder

A couple weeks ago, a YWSer asked me an interesting question: are character names copyrighted? He had received what appeared to be two different answers on the question, but which I told him was really the same answer told two different ways.

The short of it is, no, character names are not copyrighted. You cannot copyright short phrases or names, and that of course extends to the names of characters. So you could use characters named Edward Cullen, Indiana Jones, or Luke Skywalker in a story about how Luke and Indy relentlessly poke fun at Edward.

However, the characters themselves can be copyrighted. So while the name of the character isn’t copyrighted, the character itself could be. That means that while I can use the name Luke Skywalker, I can’t really write about Luke Skywalker (or at least, I can’t profit from doing so).

As you can imagine, there are a lot of fine lines here. Firstly, not every character can be copyrighted; the character either needs to be described very specifically or one of the central characters. Secondly, what if I wrote a story set in 2560 AD about a war between Mars and Earth and one of the starfighter pilots is named Luke Skywalker? The connection between my character and George Lucas’ character is pretty obvious, but then again there are significant differences between the two. Still, I’d probably be okay doing that, unless George Lucas has trademarked the name.
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Okay, this one is a bit of a doozy.  That is, does posting your work on the Internet ruin your chances of getting that work published? At play here is something called “First Publication Rights”, but first, lets step back a bit.   (If you wish, you can skip the background info and go to the middle of the article titled “Does posting on the Internet void first print rights?”)

Now, when you write something new, you automatically have a copyright on it.  If it’s an entirely new work then your copyright extends to the entire work.  If your work is based on a previous existing work (such as Harry Potter), then your copyright only extends to what you added.  Needless to say, you cannot do much of anything with your work unless you have a copyright in the entire work.  To understand more about copyright, click here.

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In two previous posts, I’ve discussed what you need to know about copyright, and the copyrightability of characters.  So now it’s on to another discussion of copyright, but this time concerning co-authors (aka, joint authors).  As always, please note that this only applies to United States law.  That being said though, it’s not going to differ much among developed nations. (more…)

Don't Even Think of Copying Us... for profit of course

In a previous post, I covered the basics of what you need to know about copyrights.  But of course, there are specifics I didn’t cover.  The copyrightability of characters is one such specific.

First off, keep in mind that copyrights are automatic.  You don’t need to do anything to get one.  However, for something to be copyrightable, it must be original and fixed.  Original just means it needs some minimal amount of creativity, and fixed just means you can hold it or see it (an idea, for example, cannot be copyrighted).

As you may imagine, characters are indeed copyrightable.  Otherwise, anyone could write and publish another Harry Potter novel using the characters from Harry Potter.  But just because you make up a character doesn’t mean it’s copyrightable.

The first requirement of copyright is that it be original.  If your character isn’t original, it can’t be copyrighted.  In deciding whether or not a character is original, courts in the United States have used two tests: the Specificity Test and the Story Being Told Test.  Lets go over both!

The Specificity Test

The specificity test is very straightforward.  Is your character specific?  Does your character have a name, a description, and emotions?

However, the specificity test is also quite vague.  There’s no bright-line that you must cross for your character to be copyrighted, and the grey area is very wide.  Obviously, Harry Potter is a copyrighted character.  Neville Longbottom is another copyrighted character.  But what about Nearly Headless Nick?  His name and description probably makes him copyrighted, but it’s not quite clear under this test.

As one court in Nichols v. Universal Pictures Corp. said, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinctly.”

The Story Being Told Test

The Specificity Test leaves a lot of discretion to the Court, so some courts have instead chosen to employ the Story Being Told Test.  In this, if your character is the story, then your character is copyrightable.  But if your character is just a chessman, your cannot is not copyrightable.

Conclusion

Confused yet?  Because if you’re not, you should be.  Courts struggle with when a character can be copyrighted.  Fortunately for most of us, it doesn’t matter.  No one is really interested in copying the characters we make up.  However, if you are concerned, then refer to the quote from the Nichols court above.

Alternatively, can you copy someone else’s characters?  It depends.  As long as you rename the character, it’ll probably be okay.  But if the character is very specific, and you copy all the emotions and details of this character, then it’s definitely not okay.

Addendum: Fan-Fiction

Where does this leave fan-fiction?  Generally, fan-fiction is okay as long as it’s not for profit.  So as long as you don’t intend to profit from your Harry Potter fan-fic, you’re okay.

First, please note that this only covers copyright law as it stands in the United States.  Although I expect it’s similar in any other developed nation, there may be some differences.

When people first join the Young Writers Society, a common concern is copyright.  Mostly, this concern stems from a misunderstanding of copyrights.  So this post first covers what a copyright is and what it is not, what can be copyrighted, and, lastly, how you get a copyright.  Unfortunately, you have to be necessarily circular about this kind of stuff because you can’t understand the first section without reading the third section, and vice versa.  So, be patient and read along!

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