Deriving “Inspiration” From Other Works

Today’s post addresses a two-part question: “What’s the legality of using other works as “inspiration” for new works? When do you need a license?” 

The short answer is that it depends on the copyright status of the work the author wants to use for inspiration.

This week, we’ll look at the author’s obligations when the work is in the public domain. Next week, we’ll look at licensing for works still under copyright protection.

Authors wishing to base a new creative work on a pre-existing work must determine whether the pre-existing work has entered the public domain.

Generally speaking, copyright includes the right to control “derivative works” – meaning sequels, but also works based on or derived from the original.

That means a novel like “Pride & Prejudice & Zombies” is legal only if the original lies in the public domain or if the author obtains a license. Another example: you cannot write a novel about the other students at Hogwarts’ without permission from J.K. Rowling.

Many people write “fan fiction” involving characters from favorite novels or TV shows, but it’s not legal to publish without a license.

However, where the copyright in the original has expired, the contents of the original enter the public domain, & can be used. When a work enters the public domain, other authors can use it for inspiration without a license from the original author. However, the new author’s copyright on the derivative work covers only the new contributions, not the original 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.

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. “Publication” doesn’t require a profit motive either. Posting infringing material on a blog, Internet forum, or other website is “publication” for infringement purposes.

I hope you’ll join me next week, as my Wednesday publishing post takes a look at how to approach an author in search of a license to use a work as inspiration or to create a derivative work. Be aware: your chances of getting that license are better if the author is no longer writing a given series and/or if your proposed work is far enough from the original to avoid disrupting the author’s canon.

Have questions about this or other publishing law topics? Feel free to ask in the comments, via email, or on Twitter (@SusanSpann)!