13

Would it be a violation of copyright and/or plagiarism to “borrow” a character from another novel?

For example, I have a short story and want to include as a side character Ender (of Ender’s Game). I would preserve Ender’s name, family, personality, etc. But Ender would only play a small part in the story.

It’s not the brightest idea, but I’m curious if it’s legalin the US.

  • 4
    The answer to "is it legal to do X?" can differ based on where you are. Please Edit your question to state your location. – a CVn Mar 5 at 10:12
  • @aCVn thanks. Done. – LN6595 Mar 5 at 19:12
24

I am not a lawyer, but you really should not do this. Orson Scott Card (OSC) and any partners he has (publisher, movie studios) own "Ender", and you cannot profit from it in any way whatsoever. OSC and his partners are rich enough to sue you even if you don't make any money, and may even be legally obligated to sue you in order to protect their property, if your work is public in any forum. Including all the details of Ender and his family would likely be held by a court to be "substantially the same" text as what OSC wrote, So I think you would be held liable, not only for any profits you made, but extra damages as well.

The only plausible reason for you to do that is to increase the appeal of your story, and hence the financial value of your story, in the court's view by stealing the intellectual property of OSC.

Use your own imagination. Do not presume that because others writing fan-fiction are getting away with it, you can get away with it too. They may not be poking at the same bear as you would be, and in crime the excuse that other people are getting away with it all the time doesn't hold any water for defense.

  • 3
    It might be worth noting the existence of public-domain characters, here. Ender isn't one of them, but they do exist. – nick012000 Mar 5 at 3:21
  • It should be noted that the kind of copyright infringement this might be is not a crime, merely a tort. It should also be noted that a copyright owner is never required to sue on pain of losing rights, that is trademark law. – David Siegel Mar 5 at 13:46
  • @DavidSiegel I don't know if "Ender" is trademarked; some character names are, especially with unusual names. – Amadeus Mar 5 at 19:07
  • @Amadeus Yes some character names are trademarked, but that does not mean that they cannot be used. Use of a character's name within a work that was sufficiently limited to be fair use for copyright purposes, would almost surely be nominative use for trademark purposes, unless the name was used to advertise the work. If "The latest appearance of Ender Wigan" was on the book cover, that would be a trademark violation, assuming the name was trademarked. If the reader could well be confused into thinking the work was authorized by OSC, that could infringe a trademark. – David Siegel Mar 5 at 19:15
  • @David OP says "I have a short story [...] I would preserve Ender’s name, family, personality [...]". That "preservation" sounds like a lot of writing in a short story, regardless of the role Ender plays in the plot, and I will reiterate my non-lawyer advice: Don't do it! – Amadeus Mar 5 at 19:30
14

This probably should have been raised over on law.se, but I hang out there, and can answer. (See this question and answer from law for more on fair use.)

The literary homage in which one alludes to another work has a long tradition behind it. In some cases it could be treated as infringement, but hasn't been. However, some authors choose to exercise stricter control over their literary work, and I think OSC may be one such. So let us consider the strict legalities.

Making extensive use of an existing, well-defined character (from a work which is in copyright) means that the work is a derivative work, and cannot be published without permission from the copyright holder on the original work. This is true even if no actual text from the original is copied. For example, writing The Further Adventures of Ender taking the character beyond the story OSC wrote would pretty clearly be copyright infringement. A simple reference would not. Having the character show up for a few paragraphs probably wouldn't be infringement. Having him as a significant presence for, say, 50 pages, almost surely would be infringement.

The more of the distinctive characteristics of the original character that are used, the more the work becomes a derivative work, and thus an infringement. There is no bright line here. Or not until a court rules one way or the other, and you don't want things to get to that point.

It doesn't really matter whether you are distributing this work for free, or it becomes a bestseller, except that the amount of damages will probably be higher if you are making money off the work, and the original author may be more likely to sue if there is money to be claimed. Well, if things are on the cusp as to whether use of the character is "fair use", that the work is done for profit will weight things towards the infringement side, but that is only one factor, and often not the most important. Note also that "fair use" is a strictly US legal concept. Other countries do not have it. Some European countries have "fair dealing" which is somewhat similar, but rather more limited. In any case, a non-commercial use can still be very much a copyright infringement.

Of course, one obvious route is to ask permission. If the author is willing to permit your use of his character, you have no problem. He might do this for nothing more than a mention in an acknowledgements section, he might want payment, or he might be unwilling to accept your use on any terms. There is no knowing unless you ask. I would suggest that you be very specific in what use, and how much, you are asking for. Be sure you get permission, if it is granted, in writing.

5

This is de facto fan fiction, which seems to be in a legally gray area, where it's generally ignored UNLESS someone tries to profit from it. If you're including someone else's work in a profit-making venture, ethically speaking, you should get permission and/or pay them.

  • 4
    Some authors ignore most fanfiction, some go to significant effort to supress it, even when it is non-commercial, some, like Eric Flint, embrace it, and invite carefully selected fan authors to co-write future published works in the setting. (That is an unusual if not unique case, however.) – David Siegel Mar 5 at 3:06
3

No, absolutely not.

Copyright owners have the exclusive right to produce derivative works based on their properties. Thus, using Ender himself as a character in your story without permission from the copyright owner - even for one scene, even for one sentence - is copyright infringement. It doesn't matter where your work is published, it doesn't matter if you're selling it or accepting donations or not profiting in any way except publicity.

The exceptions are:

  • Criticism. You write a (usually) nonfiction work and talk about Card's novel (or the movie, or both) in it. Example of criticism.

  • Parody. You write a work of fiction to deliberately make fun of Card's work. Note that comedy and satire are not necessarily parody: the artistic qualities of the work itself must be the subject of commentary, criticism and ridicule. For example, you can't have Ender get deployed to the Middle East to criticize US presence in Iraq, but you can have Ender get deployed to the Middle East and fail catastrophically to showcase Card's bad (in your opinion) grasp of real military tactics. Example of parody.

  • Nominative use. You can have characters in your work of fiction read, think about, and discuss Card's novels, the movie, or the character of Ender. Example of nominative use.

Importantly, even if you keep to these three exceptions, there's still a possibility that (1) you get sued and (1a) lose or (1b) win the suit but not your legal costs, or that (2) your work is deleted by the hosting platform (Youtube, Wordpress, etc) (2a) following a copyright complaint or (2b) for no reason at all.

  • If a copyright complaint is involved, try contacting free speech nonprofits such as the Electronic Frontier Foundation.

  • If a "free" platform arbitrarily deletes your work as their Terms of Service allow them to, they're legally in the right and your best bet is making noise and creating PR problems for them. There have been cases when the copyright holder intervened on behalf of the critic to bring their content back to the platform.

If your case does not fall under fair use, you need to get permission from the copyright owner and hire a lawyer, preferably before you invest time and money into producing your work. Some owners are bound by pre-existing obligations and cannot actually issue new permissions at will. Words of encouragement on Twitter are not legally binding and won't hold up in court against Tor or Lionsgate.

3

The point of copyright law is primarily to protect the financial interests of the original author. If you copied long sections of "Ender's Game" into your book, to the point that a court concludes that someone might buy your book INSTEAD OF buying "Ender's Game", you would lose a copyright lawsuit. If you just copy a few snippets here and there, it would probably be considered "fair use". If you just referred to the character without copying any words from the original besides his name, that would definitely not be copyright violation, because you haven't copied anything.

It might be trademark violation, which is a whole different issue. If Mr Card or his publisher believes you are appropriating their trademark to take advantage of their good name, they could sue you for trademark violation. In this case there would presumably be little question that you are indeed deliberately copying there trademark. So the only question for a court would be whether you had done them any harm.

Regardless of the legalities, you might seriously consider what you are trying to do from a literary and artistic point of view.

Using someone else's character is generally seen as being lazy or uncreative. Readers expect you to invent your own characters.

If you just make a quick reference to someone else's character for a joke or a comparison, like "he's as strong as Superman!", you'd almost surely get away with it legally and artistically. I recall a novel I read once that had a brief section where the hero runs into a strange space-time anomaly and heroes from 3 or 4 other's people books show up. They all quickly leave and he gets back to his own characters. Personally I thought it was awkward. I suppose some readers thought it was cute. But drag that sort of thing out much and it just makes your story look like fan fiction rather than an original work.

* Update *

The name of a character, or basic ideas about a character like what sort of person he is, are not protected by copyright.

From a US Copyright office publication:

Can I copyright the name of my band?

No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 34 "Copyright Protection Not Available for Names, Titles, or Short Phrases".

How do I copyright a name, title, slogan, or logo?

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 33, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

How do I protect my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

  • 4
    I hate to tell ypou but using an existing character, even without copying any actual text, can be a copyright infringement, depending on how it is done. – David Siegel Mar 5 at 0:51
  • @DavidSiegel See my update. – Jay Mar 5 at 15:06
  • 1
    While you have correctly quoted a copyright office publication, in this context that quote is quite misleading. While a name alone is not protected by copyright, a character will be, and a name is one item that indicates reuse of a character. There is case law on this, which i will try to add to my answer later. Also when you quote a source like this, please use a blockquote. – David Siegel Mar 5 at 16:10
  • @DavidSiegel Well, I don't think that's correct. If you have case law or something else to back up your assertion, I'm certainly interested in seeing it. I'm not a lawyer and I don't deny the possibility that I've misread copyright office information. – Jay Mar 5 at 17:23
  • 1
    please see nolo.com/legal-encyclopedia/… for a start. I'll write this up as a proper answer as soon as I can, with multiple cites. – David Siegel Mar 5 at 17:39
1

Your options, as a Writer

Ok, other people have said "what's illegal" about this situation, but it turns out there are legal paths to still get where you want to go; and as a writer you should be aware of the tools that actually exist in the toolbox. They are:

  • Get a license for a copyrighted character (not wise if you lack a reputation)
  • Use something in the public domain
  • Use a character as inspiration, often called casting, but make another character that is definitively different.

Licensing

It would be illegal if you did not have permission from the copy right holder of whatever work you want to use. So, there exists a path where you can reference Ender, but it involves getting permission from Orson Scott Card who owns the rights.

The character Mickey Mouse (the classic and problematic character in this story; see google for the history of this one character and why copyright lengths grew) is now owned by the Disney corporation; because copyrights don't die with their authors. Note, an example of a non Disney product using Mickey Mouse (the recent Kingdom Hearts) has a licensing agreement.

Public Domain

However, any character in the public domain you can use. Sherlock Holmes, for instance, is fair game. Basically anything is possible with some character in this class because the copyright has expired.

Casting

This concept is based on the idea that movies have casts, and some people like to write as if an actor is their particular character. You figure out what traits you want, look at a bunch of fictional characters and see which you'd like to play the role in your story. Of course the "character" is really just the actor. They're going to have a different name in your book. They're going to have a back story; but some of who they are still is the essence of your character.

If you do it right, by the end you have distinct characters that started off as "casted" but grew into unique characters in their own right because "Jimmy" isn't actually "Mickey Mouse" he's not even a mouse, but maybe their personalities are similar.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.