Following on from my last post, here are some thoughts on ‘derivative works’, that is, developing something new from an existing work (inspired by advice given here for a Beatles ‘What If’ anthology).
As noted previously, character names and the titles of stories and songs are fair game as far as copyright goes (trademarks and ‘passing off’ are a different issue). So, from a copyright point of view you could call your story “Harry Potter and the Chamber of Secrets” – where you would be in trouble is that the title is trademarked. Because trademarks cover specified fields (such as printed material or clothing), you may find that something is trademarked in one area and not another, allowing its use, but you would still need to be careful about ‘passing off’ your work as if it were officially licensed.
Characters as a whole sit in a sort of legal limbo. Obviously directly copying a character’s description would be copyright infringement, but, just as plots can’t be copyrighted, neither can a character as such. The problem is that not only can a character be distinctive enough that the elements can be considered copyright, but we return to passing off territory. Especially if you are using their name.
Which brings us to derivative works. While you could have a non-wizard character called Harry Potter or a parodic version of Harry, writing a story where Harry Potter is the Harry Potter (or, indeed, not the Harry, but another Harry in the same Wizarding World who is named after the hero) is a derivative and would require permission and most likely a fee. (Yes, fan fiction is derivative work, which means it’s technically illegal if you haven’t received express permission – some creators give blanket permission as long as you aren’t making money or presenting it as official material, some provide permission on a case-by-case basis, and some have blanket bans. Generally, as long as it isn’t being charged for, keeps a low profile and isn’t damaging to the brand, most property owners ignore it, but you may find yourself being ordered to take it down if you don’t have permission. Remember, you have the same right to object if someone is drawing from your creations.)
A grey area is when you take someone’s ‘intellectual property’ and recast it in a very different form that remains reliant upon the original to make sense (without it being parodic or satirical). Making Harry Potter an alien with psychic powers wouldn’t necessarily save you from being sued for infringement of the property (and, once again, by calling the character Harry Potter, you would probably be accused of passing your work off as officially licenced).
That doesn’t stop you from running with ideas inspired by an existing property, but the key word here is inspired. An urban fantasy where wizards operate out of sight in their own society isn’t a derivative work, but if you borrow too closely from the Harry Potter books, unless from the same sources that JK Rowling borrowed from, you could well be in infringement.
Of course, if you have a great idea for a derivative work, nothing is stopping you from contacting the owner and seeking permission, and many franchises have opportunites for fans to write for spin-offs (such as the Big Finish Doctor Who audio adventures). Or, if the franchise is the right sort, you might be able to write something that is clearly intended to be linked, but doesn’t actually infringe on any trademarks, nor risks being accused of passing itself as official (in Doctor Who fan productions, there migth be a passing reference to a minor planet, or ‘some guy who called himself the Dentist, or something like that’, enough to hint at a link without making it concrete and, thus, actionable).
If work is out-of-copyright, you are on safe ground – but, again, there can be risks. Sometimes things that should be out of copyright aren’t (because it was transferred to another owner by the original creator), sometimes things can be out of copyright but elements remain trademarked, putting you at risk of trademark violation or passing off (the early Mickey Mouse cartoons, for example, are out of copyright, but Mickey is still owned by Disney), sometimes the copyright was established early in a creator’s career and they lived a long time afterwards (remember, copyright extends for seventy years from the creator’s death, not its inception), and sometimes the popular version of a work includes elements added later (for example, King Louis wasn’t in the original Jungle Book, but was introduced by Disney).
And, even if something is safely out-of-copyright and free from trademark issues, or you’ve carefully skirted any that exist, publishers may still refuse to accept it to avoid any potential headaches. (After all, if someone claims to own a copyright or have a trademark that they don’t, or they object to your clearly parodic work, you can still find yourself in court defending your legitimate use. Too often, money is more important than actual right and wrong in these cases – unless you or your publisher have deep pockets, it may just be best not to risk it.)
So, do your research and think carefully. If you do, you should be fine.
Tags: Copyright, Derivative Works, Trademarks