Many of my clients have a healthy respect for copyright. They understand the importance of clearing copyright. They appreciate the need for asking permission when using others’ works that are in the form of texts or images. But some have trouble with the concept of fictional characters being protected by copyright. So many of these characters have a strong hold on their position in the psyche of our culture. They are really cultural icons. And isn’t a character just an “idea.” Once it is removed from a particular work and imprinted so powerfully on the mind of our society, how can its protection be justified?
This protection is, for that very reason, justifiable in the eyes of some courts. Copyright does not protect an idea but does protect the expression of that idea. And a character’s appearance, actions, habits are what makes them memorable, and those elements in an easily identifiable literary character come from the creator’s expression of his character. Because the author has done such a good job of making them “real” and distinguishable to us, some courts determine that the characters themselves deserve the protections allowed to copyrighted works under the law.
Questions on the use of such characters have arisen for me twice recently. One client had questions in regards to copyright and a superhero. My client had titled his work invoking the name of one of our favorites. Having the character’s name in his title was very important to this author as it related to and hinted at the basic premise of his work. We actually sought permission, but, unsurprisingly, it was denied. Another client wished to work C.S. Forester’s character, Horatio Hornblower, through his novel. I sent him off to read up on the issues of copyright in literary characters and the risks involved, and I suggested that if he still felt he wanted to include the character in his work in such a way, he might want to consult with an attorney.
This is not to say every mention of what may be considered a copyrightable character’s name will result in a claim of infringement. Such a use may very well be determined a fair use in a court of law. However, I usually advise clients who come to me to clear copyright for such characters that 1) there is likely little chance of getting permission from their creators or representatives of their creators and 2) that some authors will make every effort to protect their characters and to consider that there may be some risk of an infringement suit—even with what seems to the user to be the most excusable of uses.
Also, I tell them it is important to realize that there may arise trademark issues and even issues related to unfair competition out of the use of characters distinct enough to be considered protectable by their creators and/or owners.
A good explanation of such issues and one that has links to other articles on the subject is at Atty. Mark Fowler’s blog. If you want to delve further into the issue and understand more of its nuances and the determining factors in court decisions on such cases, the recent copyright infringement case of Salinger vs Colting is a good place to start. See 1) Susan Hilden’s FindLaw article and for the latest on the settlement in the case see 2) this Plagiarism Today article.
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