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.)
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