Copyright question about referring to other authors' characters

Had a discussion with a copyright lawyer who's also a mystery writer the other day in our writers' circle on this and other topics. The answer:

Characters are not, as a rule, subject to copyright. HOWEVER. Certain extremely prominent characters are: thus the current argument over whether there can be unlicensed use of Sherlock Holmes as a character.

But using a character name as a reference is not the same as using as a character. If someone in your story were to call someone "Sherlock" the estate of A. C. Doyle is unlikely to come knocking.

Disclaimers: this is the internet. I am not a lawyer. Dinosaurs in mirror may be closer than they appear.

trocadero said:

I'm playing with the idea of a MG character who channels characters from famous literature/movies/TV shows when she's under pressure and not sure how to handle a situation. For instance, she might ask herself, 'What would Katniss do?' or Hermione, or Coraline, or even Catwoman. Would this be a problem, copyright-wise? Thanks!

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(Ritual IANAL disclaimer)

I think you can say stuff like "What would James Bond do?" or "who do you think you are, Buffy the Vampire Slayer?". At least, that sort of stuff is often said in books and films without any apparent legal difficulty. Where you'd get into trouble would be actually having Bond or Buffy appear in your story.

There are shades of that; you can have tuxedo-wearing MI6 superspy John Bell show up, I think, because the elements in question - tuxedo, MI6, superspy - are pretty generic. As soon as Bell starts ordering vodka martinis, shaken not stirred, and introducing himself as "Bell, John Bell" then you start to sail closer to the wind. (Check thisout. Looks like they got away with it, though.)

(On Holmes, there are further wrinkles because the earlier stories are out of copyright, but later ones are still in. So though public domain uses of Holmes are all over the place, and it basically appears you can do a lot with the character without having to get anyone's permission, there are legal complications; there's a case in the US at the moment, I believe, which has been brought specifically to clear up the issue of whether anyone has a real claim on the character.)

Yu can get away with "what would James Bond do", but you can't get away with using James Bond as a character. And forget copyright. It's trademark that will probably land you in court.

If your character is chanelling characters from other writers' books then it sounds to me like you're veering too close to writing fan-fiction. I think it's risky, and I wouldn't proceed with this idea.

It might well be legally acceptable but it also might well put off potential agents or publishers who don't want to have to prove their legal right to work with this stuff.