Thanet Writers Research Copyrighted Characters
Who owns the famous characters of literature? Could you write a novel in which Dracula begins a tempestuous affair with Jane Eyre, their luxurious liaisons financed by Shylock, their every whim anticipated and met by the unflappable Jeeves? I’d read that. But would the work be legal?
There are no easy answers here, no straightforward guidelines, and the situation is compounded when considering international markets. In the US, for example, authors’ inventions and claims to them tend to be guarded more zealously with different intellectual property law. Other countries have differing lengths of copyright, which further complicates things.
The problem isn’t really whether you are actually infringing someone’s rights, but whether a rights holder might believe that you are, and make your life wretched by taking you to court and arguing the toss. Writers usually haven’t time or cash to waste on legal defences, and agents and publishers are hesitant to represent or publish works with these kinds of potential issues.
In the eyes of the law, the act of copying someone else’s work is severely restricted, even if the copying is indirect. Adapting is still regarded as creating a ‘derived work’ in legal parlance, and the original author (or their estate) will have every right to object and seek any profit you may make from selling that derived work, as long as the original work remains in copyright. Even if you make no money from your creative endeavours, copying is still an infringement and you may face legal action. If the original author loses sales as a result of your work, they may seek financial recompense too.
You may have noticed the sudden flurry of Sherlock Holmes based dramas a few years ago—these were released after precisely seventy years had passed since the death of Arthur Conan Doyle. That was significant, as it was the time when, under UK law, the original work came out of copyright and became public domain. You can now legally explore Holmes evident homoerotic fixation with Watson—as so much covert fan fiction has done for decades—without fear of reprisal from Conan Doyle’s estate or publisher.
If you took characters from different source materials and put them together, this would be acceptable as long as the characters are now in the public domain and therefore fair game. The example I previously offered—Dracula, Jane Eyre, Shylock, Jeeves—could only exist with the exception of Jeeves; PG Wodehouse died in 1975, so Jeeves is not out of copyright until after 2045. Until then, you’ll need to invent your own multi-talented manservant.
Consideration must also be given to what in the US is known as sequel rights—though this is simply derived work by another name. A famous example would be an author and publisher trying to retell Gone with the Wind from a slave’s point of view, who found themselves sued by the estate of Margaret Mitchell. The case was dropped when the publisher agreed to make a donation to one of Mitchell’s pet projects, though other authors or their estates may not be so lenient.
You can often get away with a good deal by describing your work as ‘unofficial,’ though usually this is non-fiction accounts written without authorisation and not new fictional works. Search your library catalogue for unofficial Harry Potter and marvel and despair at how many titles get thrown at your jaded face. But if J K Rowling decides to take you to court, would you care to back her bank balance against yours?
Some estates seek out sequels from new writers, of course, and are delighted when new talent continues the brand. Susan Hill was asked to write a sequel to Daphne du Maurier’s Rebecca, and was given the proviso that she must remain true to the original, rather than create a spin-off based on some tenuous link. The Fleming estate has commissioned several new writers to create sequels, and even prequels to the original Bond canon. In 2017 the Wodehouse estate approved Bertie Wooster reimagined as an incompetent spy, with language and humour remarkably close to the original. In these instances it’s essential to adhere to the author’s original creation as faithfully as possible, and to not put pen to paper without permission in writing from the rights holder.
In short, unless at least 70 years has passed since the original author’s death, you must either make your material significantly different, or alternatively, for the true fan, seek permission from the author or their estate.
Creating your own memorable and iconic characters whose words and personalities echo through the ages is probably something to which we should all aspire. And not only for legal reasons.
© 2019 Melissa Todd
Available under the Thanet Writers Education Policy
Melissa Todd completed an MA in creative writing at Canterbury Christchurch in 2009, and writes novels, short stories and opinion pieces.