Authors often ask me about the legality of using other works as “inspiration” for creative works–not just “fanfic” but also works intended to stand alone.
The short answer is that while the “building blocks of fiction”–macro-level concepts like “wizards” and “talking animals” can’t be copyrighted, an author’s interpretation of those concepts, and creative worlds an author builds, are subject to copyright. Using another author’s characters, worlds, or creative flourishes without permission is often copyright infringement (if done without permission and prior to expiration of the copyright term).
Use of copyrightable portions of another author’s creative works–either by copying or by using them for “close inspiration”–generally requires permission during the copyright term. Authors wishing to base a new creative work on a pre-existing work must either obtain a license or determine that the pre-existing work has entered the public domain.
Generally speaking, copyright includes the right to control “derivative works” – which includes creative works “based on” or “derived from” the original.
A novel like “Watership Down…& Zombies” would be legal only if the original lies in the public domain or if the author obtains a license (written permission) from the copyright holder. This also means you cannot write a novel about other students at Hogwarts’ School of Witchcraft and Wizardry (even “other” ones not mentioned in the Harry Potter novels!) without permission from J.K. Rowling. Rowling owns the world she created as well as the characters she placed–or didn’t place–within it.
Many people write “fan fiction” involving characters from favorite novels or TV shows, but generally speaking, it’s not legal to publish or profit from fan fiction without a license.
However, once the copyright on the original work has expired, it enters the public domain, & the characters and settings may be used for derivative works. When a work enters the public domain, other authors can use it for inspiration without a license. However, the new author’s copyright on the derivative work covers only the new contributions, not the original characters or settings on which the new work is based.
Before using a creative work as inspiration for a new, derivative work of fiction, authors need to make sure the use is legal. Here are some tips to help determine whether or not a work is in the public domain and available for use:
1. If the author is still alive, the work is probably not in the public domain. Get a license, or seek inspiration elsewhere.
2. If the author is dead: search the copyright office. Generally speaking, individual copyrights last for the life of the author plus 70 years.
3. Even if a work is public domain in the United States, it might still be under copyright abroad. Check the copyright status in all countries where you intend to publish.
4. New editions of copyrighted works (and new derivative works) may still be under copyright, so when using a public domain work — use only editions confirmed in the public domain.
5. If you can’t confirm that a work you want to use is in the public domain, hunt down the author (or her estate) and seek a license.
Lack of knowledge is NOT a defense to copyright infringement. Authors must know the status of the works they use as inspiration.
The general rule is: if the work is under copyright, you need a license if your work would constitute a “Derivative Work.” A “derivative work” means a work based upon or using fictitious worlds, characters, or settings created in the original work. Note that there is no copyright on historical or other facts, on archetypes, or generic building blocks of plots. “Wizards as children” is not copyrightable. “Hogwarts’ Academy” is copyrightable. See the difference?
Just because an author chooses not to sue for infringement, that doesn’t make non-licensed use of copyrighted material legal. Just because you heard a story about an author who infringed a copyright and didn’t get sued, does not mean you won’t be sued. And remember: “publication” doesn’t require a profit motive. Posting infringing material on a blog, Internet forum, or other website is “publication” for infringement purposes.
Have questions about this or other publishing law topics? Feel free to ask in the comments, via email, or on Twitter (@SusanSpann)!