That Grey Area of Copyright

By Helen Hollick

I read an article the other day about a self-published ‘author’ (hmm, debatable term) who had produced dozens of new books in one year. Someone got suspicious and looked into the details. It turned out this ‘author’ had copied, almost word for word, other books just changing the characters’ names, sex, and altering the location. So Jane Brown became John Black, and London became New York. That in itself was fine, but when an original sentence of: ‘Jane looked out of her bedroom window at the grey, drizzly sky of a London afternoon and sighed,’ became: ‘John looked out of his bedroom window at the dull, drizzling sky of a New York afternoon and sighed,’ things are not so fine. (I made the example up by the way!)

What is even more disturbing, it seems this particular person knew exactly what he/she was doing because they had been caught, and cautioned, before. Apart from this is damaging to the original author and nothing more than copyright theft, what did this person get out of it – beside raking in a few ill-gotten pennies? We are not talking big time best-seller here. But then of course, the best-sellers or media-attention novels would get immediately noticed. I suppose, like any fraud it is the greed of making money via as little effort as possible that counts here, not the thrill of writing and producing a novel.

I am no legal-eagle and I’m not going to repeat the many legal quotes and examples on the internet about Character Copyright (do a search for yourself), but basically, characters, ideas and titles are not copyrightable. There are exceptions of course, but I’ll get to that in a minute.

My lead character in my Sea Witch Voyages is pirate captain Jesamiah Acorne. He is tall, black-haired, good-looking, has a gold earring and wears blue ribbons laced into his hair. Now, that description could apply to any number of eighteenth century real, or fictional, pirates. You might get on to trickier ground if, as with my character, the earring was an acorn and the ribbons were royal blue, but there would be nothing to stop another author calling a character ‘Jesamiah Acorne’, although I would be a bit miffed if he was a pirate. Make him a spy, a detective, a horsemaster in Richard III’s army by all means, no reason why you shouldn’t, but why would you want to? The joy of writing fictional characters means you make the characters your own. Using an already well-known name doesn’t make your guy your guy does it? It doesn’t take long to Google for these things, if you think up a name, do a quick search to see if someone else has used it…put Jesamiah Acorne into your search engine and see what turn up.

Characters can be trademarked, though: James Bond, Tarzan, Mickey Mouse – Jack Sparrow – although usually these are recognisable characters because they have their visual on-screen equivalents. (And would anyone really be daft enough to take on the might of Disney?) Names in books out of copyright, the classics, are fair game hence the multiple stories about the Bennetts and the Darcys, or Sherlock Holmes and Dracula (I use the Doones of Exmoor in my Sea Witch Voyages.)

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But what about ideas? Again, an idea is not copyrightable. If it was we’d be pretty short of stories! All those remakes of Romeo and Juliet… OK, so Shakespeare is a classic and not in copyright – but West Side Story is… There are very few basic plots, the trick, as an author, is to take the familiar and make it unfamiliar – write a story about a spy or a vampire, but give the story a different twist. Any story can have a dark-haired, vain but gorgeously beautiful woman as its protagonist (many stories do) but make her your own character. Have her say and do things that you want her to do, give her the personality of your choice – even if she does, basically, resemble someone else in a different novel. Look how many Shades of Grey look-alike’s there are now! How many vampire and wizard stories. Every single vampire has fangs and preys on his/her victim to drink blood. How many young wizards go to various wizard schools (and no the stories didn’t start with Mr Potter – ever read Ursula le Guin’s Wizard of Earthsea?) So description of a character is not copyright. The actual adventure and the words it’s written in, are.

What you cannot do is have a dark-haired vain but gorgeously beautiful woman saying and doing exactly the same things as a character in another book. So maybe this gorgeous but otherwise troublesome woman is, in the original story, a teacher called Janice. You name her Mary and keep her as a teacher. Ok. That’s acceptable, there are lots of stories about good-looking teachers. In the original she has a torrid winter-time affair with the headmaster. In yours she goes on a summer-long cruise and has a ‘good time’ with some of the crew. Similar characters, completely different plot. Perfectly acceptable. Similar ideas are fine to use – both teachers are bored, both get through marking the homework with a bottle as a companion. Both dread Monday mornings – but wording these feelings using another author’s words is not acceptable. Creativity is not copyright infringement, copying is. If you use the same dialogue that Janice speaks to her headmaster for Mary canoodling with the ship’s captain, that’s copyright infringement.

‘“Oh Headmaster,” Janice purred as she kissed his bearded cheek,’ and ‘“Oh Captain,” Mary purred as she kissed his whiskered cheek,’ is copying. Whereas ‘“Charles, you are the handsomest man I have ever seen,” Mary smiled as she touched her lips to his cheek,’  isn’t,

So your character may look similar and behave similar to another character, but if he or she is doing different things in a different setting or location, using different dialogue – well, they are not the same are they?

Fact is also non-copyright. You might spend hours, weeks, months researching something –pirates for instance. You find something new and intriguing that no one has ever mentioned before and you write a book, or a blog article, or you pop it on good old Wiki – but once in the public domain, fact becomes non-copyright. Anyone can make use of your hard-researched fact – but they cannot do so using your words. (So go ahead an write an article about copyright, but don’t copy this word for word.) You can quote, of course: “Helen Hollick in her article ‘The Grey Area of Copyright’ (link included) said…..”

So to sum up: characters are not copyright. Description of a character can be very similar, but you cannot use the same dialogue, entire plot, or text as the original story. There may be some plot over-spill, of course – maybe both characters have a fight in a dark alley, or get lost on a misty moor, nearly drown in a lake, or choke on a peanut.  Fine. What isn’t fine is for both characters to, coincidentally, do all those things.

Ideas are not copyright. Anyone can write a book about a young boy going off to school to become a wizard. Maybe best not to call him Harry and the school Hogports though. Anyone can write about a spy with a licence to kill, a soldier in the Royal Rifles during the Napoleonic Wars, a handsome vampire with eternal youth who falls in love with a human, or a pirate with a witch for a girlfriend. But maybe don’t use James Bond, Richard Sharpe, Edward Cullen, or Jesamiah Acorne for names, or have them doing exactly the same things in similar places.

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The comments, advice and opinions expressed here are those of authors whose books have been honored with a B.R.A.G. Medallion. They do not necessarily reflect the views of the owners, management, or employees of indieBRAG, LLC.

8 responses to “That Grey Area of Copyright”

  1. Helen Hollick says:

    Thanks Stephanie – I hope a few authors find it useful! v

  2. Stephanie Hopkins says:

    I’m sure they will! I know I have! 🙂

  3. Kathryn Gauci says:

    My husband is a magician and exactly the same thing happens in magic. Unimaginative people out to make a quick dollar on the back of someone else’s hard work. They have to be exposed for what they are.

  4. Richard Tearle says:

    I used to work in music copyright where copyright in an original work lasts for 50 (it might be 75 now) years after the death of the last living compose (eg: Beatles songs will be out of copyright 50 (75) years after the death of Paul McCartney – not John Lennon). traditional and classical music could be ‘arranged’ by a composer and he would receive royalties based on the amount of work (ie changes) he had made from the original – we literally had a man sitting at a piano in his office to work it out!!) However, a composer could not claim a work as his own if it was clearly a ‘steal’ – the most well known is George Harrison’s ‘My Sweet Lord’ which he apparently copied (albeit unknowingly) from a Chiffons song called ‘He’s So Fine’ I imagine that in the literary field, an author could sue a deliberate copy, but the onus would be on him/her to prove it. How do you do that? Simplest way is to send a copy of the manuscript to yourself by recorded delivery and when it arrived – Don’t Open It!!! The sealed envelope would be date stamped and untouched. The judge (if it came to that) would have the authority to open it and compare. To clarify: you write a book in 2014, send yourself the manuscript, but in 2016 you come across a ‘new’ book which happens to infringe your ideas, plost etc. You can now prove that you wrote it first…..

  5. Helen Hollick says:

    That’s interesting Richard – thanks. Ideas, characters, even basic plots cannot be classified as copyright, but blatant copying word for word is – how does that work in magic terms Kathryn? I mean, the idea of ‘pick a card, any card’ is very basic isn’t it, but I assume if you were to add something like ‘just like that’ (Tommy Cooper’s tag line) then it could be copyright infringement?

  6. Jf ridgley says:

    Excellent info. Lots here I did not know. Thank you Helen

  7. Helen Hollick says:

    My pleasure JF

  8. Madalyn Morgan says:

    Very interesting post, Helen. I agree with jf ridgley, excellent information. Thank you.

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