The Massive Complexity Of Copyright Demonstrated In A Simple Question: Can Don Draper Make A Cameo In My Novel?

from the it-depends dept

A few weeks back, I saw Mark Fowlers really excellent blog post covering more or less everything you need to know about the legality of incorporating fictional characters into a new work. It covers many of the stories and/or themes that we've discussed in the past, including the banning of Coming Through the Rye and the non-banning (almost banning?) of The Wind Done Gone -- both books that were sued for including characters from other (much more famous) books, but from a different context. It also covers issues related to fan fiction.

As I said, it really is an excellent, balanced and thorough read on the topic. But, the thing that got me was how it demonstrated just how complex and silly copyright law has gotten in cases where people are looking to be creative. The purpose of copyright law, again, is to encourage creativity and new works. Some may argue that it's "not new" to reuse someone else's character, but it's hard to support that, when you realize the number of wonderfully creative works that have been made by building on characters created by others. The real issue, to me, is that it all comes back to a simple point: does the new work take anything away from the original work? In almost all cases, the answer is going to be no. Contrary to the assertions of someone like Prince, when someone builds on your work, it does not harm the original. If anything, it's only likely to enhance the original, potentially introducing it to new and different audiences.

It's hard for me to reconcile the idea of giving a copyright to a single character in a book with both the purpose of copyright law and the intention of the First Amendment. In both cases, we're talking about principles that were supposed to encourage creativity. And, as most creative people will admit, real creativity is almost always derivative. People build on the works of others all the time, and it doesn't diminish or harm the original works. In many ways, it's a creative challenge to build on those works and to create something new and creative out of them. I also still cannot understand how the concept of copyrighting a "character" does not run afoul of the simple prohibition on having copyright cover "ideas." A character is an idea. The specific expressions of that idea can be copyrighted, but it seems simply wrong to claim that the idea of a character can then be covered by copyright.

If anything, the rise of fan fiction has helped to show how silly the laws are that make it, in many cases, against the law to build on the works of others. Fan fiction has galvanized and excited plenty of communities around original works. It is, in many ways, the oldest form of storytelling. Historically, the storytellers around the campfire didn't just make up each and every story anew. They would hear the stories of others and enhance and embellish them. That's hardwired into our culture, and it seems pretty silly to me to try to limit that with copyright law.

Filed Under: copyright, don draper, fictional characters