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Ask Robert McEwen, Esq. Your Own Question

Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 11546
Experience:  Licensed Texas General Practice Attorney
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Im writing a book that deals with characters weaving in and

Resolved Question:

I'm writing a book that deals with characters weaving in and out of other famous stories, and meeting famous characters such as Elizabeth Bennet and Mr. Darcy in Pride & Prejudice, which is in the public domain while others are not. Should I be concerned about the copyright issues of having characters appear throughout the story?
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  Robert McEwen, Esq. replied 10 months ago.

Robert McEwen, Esq. :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

Robert McEwen, Esq. :

Yes, you should absolutely be concerned and proceed with extreme caution in doing so. Characters enjoy copyright protection as well (not just the works that the characters appear in). The more specific the character, the more likely copyright protection will attach. That is, a "British spy" is not specific enough to have copyright protection. But a "British spy that works for MI-6, drives an Aston Martin, likes vodka martinis "shaken, not stirred") would be specific enough, even if you didn't use the name "James Bond". The character and the development of that character would be copyrighted, and if you were to use that character (for instance) in your book without authorization, that would clearly and unequivocally be copyright infringement.

Robert McEwen, Esq. :

Now there's certainly a situation where there's a defense to infringement (i.e. "fair use") but that applies in limited situations (where the copyright is used for news reporting, comment, criticism, teaching, etc...)

Robert McEwen, Esq. :

And that fair use exception probably would not apply in your specific case.

Robert McEwen, Esq. :

So while you can absolutely use characters and works that are in the public domain, for characters that are protected by copyright, you would really want to have permission to do so.

Robert McEwen, Esq. :

Now it's possible that your work could be small enough to "fly under the radar" of these copyright holders, and if they don't know about the infringement, then they won't sue you. But assuming they find out (and it's a lot easier to find out in the internet age) they could easily go after you for infringement.

Customer:

Well, in this context, it would almost be a parody or a satire situation. More of a "Quantum Leap" kind of a deal, if that makes sense? I'm really more just curious if I ever decided to try and publish the story, than that I'm actually planning on it.

Robert McEwen, Esq. :

I see. Satire could be a basis to use a copyrighted character under fair use... It would be best to change names or to clearly make certain it would be seen as a satire.

Robert McEwen, Esq. :

And even then, it would be a good idea to try to get permission from the holders of the copyright for that purpose. Any time that you fall back on fair use (notice it is a "fall back", not a first strategy) you run the risk that a court is not going to agree that it is fair use.

Customer:

That makes plenty of sense, and was mostly curious in the event that I might try to get the story published in the future. Wouldn't want to bring on the wrath of any big fish out there. Thanks.

Robert McEwen, Esq. :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

Customer:

Thanks.

Robert McEwen, Esq., Lawyer
Satisfied Customers: 11546
Experience: Licensed Texas General Practice Attorney
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