I received an interesting question this month, the answer of which will be likely being helpful to other writers. So I have paraphrased the question in the title line. The original question asked if those other characters are protected by copyright or in some other way protected that would prevent the writer from referring to those characters. Below is my response. Visit www.LiteraryLawGuide.com for various resources for writers that cover a range of topics that may answer questions you have about copyright, trademark or other literary law issues. Also, consider my e-book "Writing About Real People and Places."
ANSWER:
There are actually a couple of intellectual property laws that you should be aware of for this issue; copyright and trademark.
Copyright protects original and creative artistic and literary works. Copyright allows the owner to 1) copy 2) distribute copies 3) make derivative works (turn a book into a screenplay, for example) 4) perform the work publicly and 5) display the work publicly. So copyright is actually a bundle of rights. One cannot, however, copy the name of a commonplace, peripheral character in a book or title of a book. However, courts have consistently extended copyright protection to fictional characters that have sufficient original and creative characteristics as to be a distinctive character (meaning not merely a drawing, but a character with a name, features, and speech or other means of communication). Successful court battles to protect copyrighted characters include characters like Batman, Mickey Mouse, Superman and Betty Boop. This is not to be confused with a drawing of a character, that doesn't have any other features other than a graphic representation. In that case, the drawing could certainly be copyrighted as visual art with Copyright Form-VA.
A second law that may apply and protect a character is trademark law. Trademark law grants the owner the exclusive right to use a word, phrase, logo, design, sound etc. in connection with the sale of goods or services. For example, NBC uses its distinctive chime as a sound mark to promote its services as does MGM for the lion’s roar. McDonalds uses the golden arches to promote and sell their brand of fast food as does Burger King’s slogan, “Have it your way.” But it’s not just protecting a tag line, per se, but the way a particular company uses it to sell its goods or services. One main purpose of trademark law is to avoid consumer confusion about who is the actual seller of a product or service. For this reason, a fast food company named McDowells could not also use a “golden M” that is in any way similar to McDonald’s use. I say all of that to say, that copyright does not protect the characters, but trademark may (Harry Potter is trademarked, for example). BUT there is certainly an exception for literary and artistic purposes in writing or else these rules would stifle creativity as long as it is clear that the owner of a particular trademark is not the source of the book and has not endorsed it in anyway. So you could certainly refer to real people as well as characters and use your own literary interpretation to develop different scenarios for that character. Of course, the safest way to proceed is to use the same names and give them different character traits and a different story line.I discuss this in greater detail in Literary Law Guide for Authors: Copyright, Trademark and Contracts in Plain Language, available at the website, Amazon.com or your local book seller.Click here to listen to previous casts or subscribe.
Write on!
Tonya
