Copyright: Separating Character & Story

Well, if you're talking copyright, my understanding is that you can't copyright characters OR plots. Only complete works can be copyrighted.

You can trademark characters, though. For example, no-one can draw a comic book with a guy in a blue suit, red briefs and a big "S" on his chest without getting the immediate and intense interest of DC's attorneys. Nor can you write Star Trek novels without Paramount's permission, or Buffy ones without, oh, whatever Whedon's production company is. ("Grrr! Arg!")

However, you can get away with a new character like existing ones as long as it's different enough. Rosemary Edgehill's novel Vixen the Warslayer has a character who's half Xena and half Buffy. It's pretty clear where the roots are, but there's no substantive infringement.

But as far as I know, you can't trademark plots either. How many fantasies where the hero has to find a band of helpers and then make a dangerous journey to destroy a magic item have there been since Tolkein?

DISCLAIMER: if it really matters to you, go see an attorney for real legal advice. I am not one, and may be full of it for all you know

All that can be copyrighted are specific arrangements of words on the page.

I don't know how you'd go about copyrighting or trademarking a plot.

I am not a lawyer. #insert <std_disclaimer.h>

A copyright does include the right to create derivitive works. That would include stories starring the same original characters you used in your first book, as well as the right to set it in the same world, etc - but only to the extent that you invented the world and characters.

For example, had someone written a work of fiction involving the historical (100% human) Dracula shortly after Bram Stokers' book came out, Bram would not be able to sue for infringement. On the other hand, his estate did sue over the movie Nosferatu for copying too much of Bram's fictional Dracula.

Plot, on the other hand, generally can't be copyrighted at all.

We have Charles Dickens to thank for copyright covering derivative works.

James D. Macdonald said:

We have Charles Dickens to thank for copyright covering derivative works.

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Eh?

caw.

Sage said:

Mutant Enemy is Joss's, but it doesn't exist anymore. So here's a question about that? If ME trademarked Buffy & doesn't exist, does the trademark still stand?

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Mutant Enemy! Yes! I just came up blank yesterday.

I would be VERY VERY surprised if Mutant Enemy didn't transfer their intellectual property to some other entity before shutting down. SOMEONE has to rake in the bucks from the reruns, DVDs and action figures. Joss is far to savvy to let it all twist in the wind.

(And in fact, a quick search at uspto.gov shows 20th Century Fox holds the Buffy trademarks.)

Well, I'm STILL not a lawyer, but it seems to me that if you guys come to an amicable agreement about it there's no reason you can't let her use the characters in her OWN novel. Doing stuff like that WITH PERMISSION is pretty easy; it's when people don't work it out ahead of time that we get problems.

blacbird said:

Eh?

caw.

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The Pickwick Papers was very popular. "Pickwick Clubs" sprang up all over the English-speaking world. Some folks wrote what would today be called "Pickwick fanfic." Some of them published it.

Charles Dickens, in a series of lawsuits, got judgments to the effect that he, and he alone, could publish works with the character "Pickwick." Precedent being what it is, the author's control of derivative works became law.

James D. Macdonald said:

The Pickwick Papers was very popular. "Pickwick Clubs" sprang up all over the English-speaking world. Some folks wrote what would today be called "Pickwick fanfic." Some of them published it.

Charles Dickens, in a series of lawsuits, got judgments to the effect that he, and he alone, could publish works with the character "Pickwick." Precedent being what it is, the author's control of derivative works became law.

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Interesting. I didn't know that. I thought it might have been Conan Doyle, a little later, with Sherlock Holmes (now lapsed into public domain).

caw.

Some of Sherlock Holmes is now public domain. The later stories aren't, yet. And the parts of the popular conception of Holmes that derive from stage plays and movies definitely aren't.

Shall we talk next about how the 19th c. London music halls gave us royalties based on sales rather than a flat fee for rights?

James D. Macdonald said:

Some of Sherlock Holmes is now public domain. The later stories aren't, yet. And the parts of the popular conception of Holmes that derive from stage plays and movies definitely aren't.

Shall we talk next about how the 19th c. London music halls gave us royalties based on sales rather than a flat fee for rights?

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Yeah, you're correct on this, my error. In the U.S. the last volume or two of Sherlock Holmes stories are still under copyright, and will remain so under current U.S. law until 2018, provided it isn't altered before then. I don't believe the characters are protected, though. Numerous post-Doyle fictional renditions of Sherlock Holmes exist, the most famous probably being The Seven Per Cent Solution (by Nicholas Meyer, I believe), which is pretty good and was made into a pretty good film, too.

caw.

James D. Macdonald said:

Shall we talk next about how the 19th c. London music halls gave us royalties based on sales rather than a flat fee for rights?

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Yes, please.

You'll notice that Meyer was careful not to mention any person, place, thing, or event from any of the still-in-copyright Holmes stories.

Holmes wasn't trademarked. Tarzan of the Apes, however, was. You won't see anyone writing unauthorized Tarzan novels.

Now as to royalties.

Recall the music halls of London? Various artists appeared on stage singing songs. The money was in the sheet music, sold from the back of the hall. If you like a song you could buy the words and music (cunningly printed so that it could be separated into a piano score and a lyric sheet). The colorful front covers would be printed with the title "as sung with great success by [name]" or "as sung to great applause at [place]," printed before there had been any performances at all. The printers paid the songwriters a flat fee for the rights to the songs, the performers paid the printers a flat fee for the exclusive right to sing a song, the performers were paid a percentage of the admission fees at the halls, and the printers got the money for the sale of sheet music to the public (at that time there being no phonographs, radios, and so on).

This worked very well, except that if a song actually was sung with great success or to great applause, and was being hummed in every pub in England, the writer wouldn't make a farthing more than if the song had been sung to loud jeers, no one had wanted a copy, and it was never heard again.

This lasted up until a popular songwriter said words to the effect of "If you want my song, you'll have to pay me so much per thousand sold." (I don't recall offhand the name of the author -- the song was called "Gold, Gold, Gold.") He had enough horsepower to close the deal ... and others followed suit. This worked to everyone's advantage. Authors who wrote things that did well could get more money, while publishers wouldn't be stuck with having overpaid for works that didn't sell well.

Didn't someone file a patent (not a copyright) on a plot just recently? I recall some discussion about it a few months back.
Yeah. Here.
http://www.prweb.com/releases/2005/11/prweb303435.htm

He didn't patent the character(s), though. And patenting a plot looks more like performance art or a thought experiment than it looks like a sound business plan.
-Barbara

James D. Macdonald said:

Holmes wasn't trademarked. Tarzan of the Apes, however, was. You won't see anyone writing unauthorized Tarzan novels.

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Which is an interesting and instructive point, as a dozen or so early Tarzan novels of ERBurroughs have lapsed into public domain in the U.S. (but not in Europe, owing to differences in the copyright statutes). So you can freely reprint those early novels, but you can't write new Tarzan books without obtaining a license to do so.

caw.

batgirl said:

Didn't someone file a patent (not a copyright) on a plot just recently? I recall some discussion about it a few months back.
Yeah. Here.
http://www.prweb.com/releases/2005/11/prweb303435.htm

He didn't patent the character(s), though. And patenting a plot looks more like performance art or a thought experiment than it looks like a sound business plan.
-Barbara

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He can keep his plotline - it sounds terrible. An amnesia story. *yawn*

James D. Macdonald said:

This lasted up until a popular songwriter said words to the effect of "If you want my song, you'll have to pay me so much per thousand sold." (I don't recall offhand the name of the author -- the song was called "Gold, Gold, Gold.") He had enough horsepower to close the deal ... and others followed suit. This worked to everyone's advantage. Authors who wrote things that did well could get more money, while publishers wouldn't be stuck with having overpaid for works that didn't sell well.

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Thanks, Uncle Jim. I love learning stuff like that.

James D. Macdonald said:

I don't recall offhand the name of the author -- the song was called "Gold, Gold, Gold."

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Would that be Mr. Bjorn Stronginthearm?

But interestingly enough on the same topic...

a few years a go a well known and well performed New Zealand play, 'Ladies' Night' ran in the UK. Two English writers who saw the play wrote a film script which changed the setting to the UK but the five characters and the plot were basically the same.

They sold the script to Fox and it went on to become the hit 'The Full Monty'. The New Zealand playwrights had to sue in the States and were smacked down for reasons I never sorted out. Would it be because the judges decided that 'you can't protect an idea for a play when it becomes a film script?

In NZ of course the papers simply wrote headlines like 'America protects its own' and 'No justice for the small bloke'. It did seem very hard as the playwrights had already written a filmscript themselves and were in the process of sending it out.

Yes, Berry it would be Stronginthearm wouldn't it? Nice to meet another fan!

Berry said:

Would that be Mr. Bjorn Stronginthearm?

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No, no, you're thinking of "Gold, Gold, Gold." This is "Gold, Gold, Gold," and it's by Bjorn Bjornson, but not to be confused with the other Bjorn Bjornson, who wrote "Gold, Gold, Gold" and "Gold, Gold, Gold" and was a very talented percussionist with a bit of dwarf bread and a trepanning chisel.

batgirl said:

Didn't someone file a patent (not a copyright) on a plot just recently?

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The patent would be invalid. I discussed this on Scrivener's Error (my blawg) and collected the entire essay in one nice package on my website. Needless to say, the proponent of the patent wrote back with a line of drivel about how wrong my analysis is… and never refuted the critical failures of his application (he just claimed they didn't matter because his kind of patent is "different").