The Grey Zone of Creation

So you have a great idea for a new book, play or film? But there’s only one potential hitch. You have drawn, in part or fully, on a major element of a previous published work – either a famous fictional character, plot or scene. Assuming that the work is still protected by copyright, how far can you go without infringing the rights of the author or the current owner of copyright in that work?

You have now entered the grey zone of the creative process and, moreover, of copyright law.

Some of the most common copyright disputes relate to the appropriation of distinctive features or ideas from an original work, rather than a "word-for-word" reproduction of substantial parts of a work. The difficulty here is that copyright does not protect ideas, facts or themes, but rather the form in which they are expressed. To prove copyright infringement a copyright owner must prove that the infringer copied protected material. Unfortunately, there is no simple test to distinguish unprotected ideas from the protected expression of those ideas.

Generally, the law in this area has been developed on a case-by-case basis. There are no clear guidelines about the number of words, or the percentage of a work, which may be used without permission. However, the purpose of the use for which you copied the material may be relevant. If, for instance, you are using the material for a commercial purpose, or to include in a competing work, it is most likely you will need the permission of the copyright owner or you run the risk of infringing the copyright in that work.

Fictional Ideas

The "idea" versus "expression" distinction means that no matter how original the central idea or theme of a story may be, it is open to anyone to be "borrowed" or "exploited". It is the combination of situations, events and scenes that constitutes the "expression" of the idea, which is then afforded legal protection. Therefore, another totally different expression of the same idea or theme will not necessarily infringe copyright. It is possible to use all the key elements of a particular book without infringing copyright, provided you are prepared to write it up in your own words.

Characters

Graphic characters such as Snoopy or Superman are generally protected under copyright law as artistic works. They may also be protected as registered trade marks. It is more difficult to use another person’s graphic character than to use another’s fictional character because copyright law protects the visual aspect of the character even when it is divorced from its original context. A cartoon character may therefore be protected even when it appears outside the original context of that cartoon. The closer the likeness to the original, the greater the likelihood of copyright infringement.

For copyright to extend to a graphic character it must be sufficiently and distinctly delineated. This is to be distinguished from character types. For example, the law is likely to protect a depiction of Superman but not a graphic that represents a man with super powers.

Fictional characters are generally accorded less legal protection than graphic characters as they are not represented by a single physical image. Rather, they are merely representations that appear in the reader’s imagination and are therefore more difficult to compare with the original character. This is especially the case if you copy the abstract character’s traits and elements which conjure up a mental image of that character, rather than use identical or substantially similar language to describe the character.

Relevant factors for the protection of fictional characters include: whether the character is part of a copyright work; how developed the character is; and whether the character is a vehicle for telling the story rather than an essential part of the story itself. Copyright law will only protect the characterisation of a fictional character if the character is portrayed in a copyright work. If the character takes on an independent life to the story in which it appeared it will only be protected if the character has been fully developed and clearly delineated. For example, Harry Potter is a developed and delineated character rather than simply a child wizard character type, which ordinarily would not warrant legal protection.

Plots, Themes & Scenes

The law does not stop you using generic plots, settings or characters in your work even if they already appear in copyright works. Such devices, which also include historical facts, belong to a common pool of literary techniques common to all authors.

As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Copyright in historical research generally only occurs if there is extensive copying of an author’s selection or arrangement of historical facts or of the way in which those historical facts are described.

In the event that you are sued for copyright infringement of someone else’s literary work, the courts are likely to compare plots, moods, scenes, sequences, events and characterizations to determine whether you have captured the "total look and feel" of that person’s original work.

A final basic caveat – make sure, as far as practicable, that your work is as distinctive from the work you have used as part of your research or your "inspiration".

Liz Kazi was a former  volunteer researcher at Arts Law.

Christopher Sexton was the former Supervising Legal Of Arts Law.