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Monday, December 21, 2009


Copyright Issues in Fiction

Recently, I had a young friend ask me some specific questions about what can safely, without fear of legal issues, be included in a story. Could one use another author’s character names? If one was inspired by another author’s story, could one use some of his/her concepts?”

My first response was ‘ye gods, don’t do that!’ especially since the author in question was a well-connected, powerful one. But as the questions took more twists and ‘what-if-I’ turns, I realized just how tricky the line fiction writers walk can become. So, that said, a few words about the basics of copyright and trademark infringement for the fiction writer.

Characters and Created Worlds:

We all know plagiarism is wrong, is prosecutable, and will ruin your reputation. But what if you borrow a setting, a character, or a well-known story to rework it? Gregory Maguire does it in Wicked, and no one sued him, right? So why can’t we use Roland the Gunslinger from Stephen King’s Dark Tower series? The answer lies with something called ‘public domain’. If a work has passed into public domain, there is no longer an active copyright and anyone can use it (properly attributed, of course.) Anything published prior to 1923 is in the public domain, anything after that falls under different copyright acts, so check first. Current copyrights are good for the life of the creator plus seventy years. So Stephen’s got a way to go before he falls into public domain, especially if he lives to be a hundred. While the name ‘Roland’ can’t be copyrighted (it’s an old name, still given to young men today) the use of Stephen’s plot concepts, settings or character attributes in any substantial way can be viewed as infringement.

Song Lyrics and Poems

Once again, everything in the public domain is fair game. Robert Browning will not rise from his grave if one of your characters talks about ‘the best laid plans of mice and men’. Well, probably not. I suppose it depends on whether he’s in a haunting mood. Even lyrics and poems and other works not in the public domain can fall under the ‘fair use act’ which allows for limited use of a copyrighted work without permission, as long as the creator is credited. The key word here is limited, as in no more than a line or two, and the practice must be used judiciously and carefully. With all the file-sharing and bootlegging issues, artists are much more sensitive to their work being used without permission, and rightly so.

Real People, Places and Things

You may, of course, use real cities for your settings in fiction. It would be difficult for a lot of PI’s to exist without their respective cities, or for Somerset Maugham to write Tales from Some City on the West Coast. Using recognizable landmarks, streets and establishments creates a more realistic atmosphere, puts the reader on scene. If you’re going to use an existing place, no need to recreate the whole city, though you can add fictional streets and businesses if you so desire without fear. Where you need to be careful is not to cast an existing business or establishment in a bad light. If one of your characters goes to a famous restaurant in Philly and becomes deathly ill, you may find yourself facing a lawsuit – you know it’s fiction, the owner knows it’s fiction, but such things tend to stick in your audience’s minds. The owner has every right to sue you for potential harm to the business. Same goes for people – casual references won’t bring you any trouble (your character mentions that she loves Colin Firth, fine, no problem.) Disparaging remarks or unflattering portrayals could cause issues. Use fictional people in unflattering ways to be safe in that regard.

Brand name products are covered under trademark rather than copyright law – but again, the fiction writer needs to be cautious. Trademarks do fall under the ‘fair use’ and ‘nominative use’ acts, which allows a non-trademark owner to use the trademark without permission. There’s a lot of legal stuff attached to this, but it means that the author can use a trademarked name as long as there is no confusion over who owns it, the author only uses what’s necessary and the mention is brief, and there is no suggestion in the work that the trademark owner is in any way endorsing the author’s work. So, saying your character ate a Twix? Perfectly fine, if you feel it’s necessary. As long as the mention is incidental, non-disparaging, and does not cause confusion or dilute the owner’s brand. (A tissue is a tissue, but Kleenex is a specific brand and should not be written ‘kleenex’ or ‘kleenexes’, for example.)

Copyright Registration

If it’s not registered with the Copyright Office, it’s not protected, right? True in the past, but not since the Berne Copyright Convention, April 1, 1989, which states that any new, original, privately created work is protected under copyright, with or without notice. Just something to keep in mind.

The final conclusions? Keep your writing as original as possible, whenever possible. Works prior to 1923 are past copyright but don’t lean on them to the point of jeopardizing your own creativity. Use trademarks sparingly and, if you must, correctly. Avoid portraying real places and people in damaging ways. If you’re unsure, look it up, ask your publisher (Dammit, Jim, I’m a writer, not a copyright attorney!) or make something new up to take its place. It’s fiction. As long as you’ve created it, you can do whatever the heck you want.

Angel Martinez is the erotic fiction pen name of a writer of several genres. Currently living part time in the hectic sprawl of northern Delaware, (and full time inside the author's head) Angel has one husband, one son, two cats, a changing variety of other furred and scaled companions, a love of all things beautiful and a terrible addiction to the consumption of both knowledge and chocolate.

You can find out more information about her and her work at

Red Rose Publishing - Finn and Finn's Christmas both available now

or her website:Erotic Fiction for the Hungry Mind


BrennaLyons said...

Be careful with some of the broad brush statements.

You're quoting US laws, and not every book is published in the US. For instance, you talk about public domain. That's your starting place. If you THINK it's public domain, based on publication date, check again. If it wasn't published in the US, the laws of the country it was published in may have allowed the author to deed rights in perpetuity to another legal entity (like Peter Pan was) or have longer limits than the US did at the time. The Berne also says the countries signed to it will support each other's laws, which means the US courts will support a UK claim that a book is not public domain (published in the UK) that would seem to be by US law, so the infringer loses.

Songs cannot be quoted...not even a line or two (save the title), unless it's public domain. The case law has established this. It determined that even a line of a song is "significant use." Of course, the recording conglomerates pushed that issue to its lengths.

And when using actual music for a book trailer, you have to further be concerned not only with when the song was written (SYNCH rights) but also when the version you'll be using was recorded (MASTER USE rights). Beethoven's work (the sheet music) is public domain, but the individual recordings of that music probably are not.

Be careful with using real businesses. It not only depends on using them in a positive light but one they will feel is not a bad association. A court case has been won where the H&H in a sensual or erotic romance went out to dinner to a real restaurant, but the owners of said restaurant were of the type that felt romance novels were smut and sued for the association made in the book...and won. Not saying NOT to do it, but be aware that it can be sued and won, if you choose to do it.

Otherwise, a lot of good information. Great article.


Kat said...

We all at some time or another may use a name another has used, like Jane Smith for example. But there are a lot of Jane Smith's in the world so we're not actually copying what someone else does. But, I never use any concepts from someone else's stories. Public domain or not, it's better safe than sorry. Besides, I like to create my own story, not someone else's. Someone else's story might spawn an idea for a story. Such as a vampire tale spawning an idea for a vampire story, but the story it spawns is very clearly different from the story that gave me the idea. We all get inspiration from something or other, but in the end we all need to make our own story out of it.

DR. NORM said...

Interesting article and interesting comments. Several important areas have been thoughtfully covered. Thank you for sharing.
Norman W Wilson, PhD

Catherine Bybee said...

I have had to change entire scenes because of my desire to use public places to set my stories. I certainly don't want to step on anyones toes, but feel all of this legal mumbo jumbo gets in the way of creativity. Which is to bad. IMHO. Great blog, Angel.

Angel Martinez said...

I appreciate Brenna's clarification above - yes, I was only speaking of US law and should have made that clear.

sherry said...

Thank you for such a great post I can honestly say that I never realized all of the things that authors have to think about when writing a book. All I can say is thank you for all of the hard work.

LeslieJane said...

Great post. Must admit, I didn't think that you would have to worry about what names/places/ect you would have to use,or not use, in your writing. Makes me appreciate the stories all the more.

robynl said...

it is very interesting about the red tape and legal aspects of using names of people/towns etc. Who would have guessed. Just one more thing for authors to have to be 'in the know' about.

Mary Ricksen said...

Oh no! Something else to worry about. Well I leave all that to my web person. I have no clue. But you sure gave me a lot to think about.
Happy Holidays!!!

Debby said...

Great post!! Lots of food for thought there.
debby236 @

Virginia C said...

Hi, Angel! Thank you for the very interesting and informative post. Happy Holidays!

gcwhiskas at aol dot com