Adopting Characters?

[lovecraft68]

I had someone ask me last year if they could use my character Megan from Siblings with benefits in a story as a secondary character who shows up at an art exhibit(she was an artist) and I said sure and was flattered.

The key is they asked. Had they not and I stumbled on the story I would have reported it to Laurel.

Paco Fear didn't write a lot of stories here, but the ones he did have huge followings. Odds are someone is going to spot these characters and get pissed off. I'd expect nasty comments, one bombs and reports to Laurel.

Just write your own characters.

 

[Bramblethorn]

The case never went to court,

As per link above, this isn't correct. The case wasn't finalised in court, which is a different matter (and a pretty common outcome - sooner or later somebody sees the writing on the wall and decides to cut their losses).

 

[Haulover]

As a reader, I would be turned off. It would seem like a cop-out, and that the author was either lazy or incapable. It would taint the rest of the story for me.

I've seen it done in mainstream literature - but I've never seen it done successfully.

 

[Dream_Operator]

As per link above, this isn't correct. The case wasn't finalised in court, which is a different matter (and a pretty common outcome - sooner or later somebody sees the writing on the wall and decides to cut their losses).

This case was never tried in court. It never went to court. It was settled out of court -- this is the meaning in the US judicial system. The negotiated outcome has no legal meaning or create any precedence.

 

[Bramblethorn]

This case was never tried in court. It never went to court.

Can you please clarify what you mean by "never went to court", given that two courts did hear the matter (in context of preliminary injunctions) and delivered rulings on it?

https://h2o.law.harvard.edu/cases/2009
https://scholar.google.com/scholar_case?case=13094222792307527660

It was settled out of court -- this is the meaning in the US judicial system. The negotiated outcome has no legal meaning or create any precedence.

The settlement doesn't create a legal precedent, no. But the 11th Circuit ruling does create a precedent for the matters it considers.

 

[Dream_Operator]

Can you please clarify what you mean by "never went to court", given that two courts did hear the matter (in context of preliminary injunctions) and delivered rulings on it?

Sure. Before a case goes to court (trial), both sides (often) file motions for summary judgement. These are presented to a judge, who rules on them. Numerous other motions are often filed.

A judge's role is not to make judgement on the case at this point, but to determine if the case has merit to proceed further or be dismissed. Prior to the presentation of evidence, a judge tends to allow the case to move forward.

A search warrant is another example where a judge makes a ruling outside of the court of law.

P.S. The two links you provided are not official US judicial opinions, but are private opinions that carry no legal weight.

https://h2o.law.harvard.edu/cases/2009
https://scholar.google.com/scholar_c...22792307527660

 

[sr71plt]

Again what does any of this have to do with the people at Literotica--posting stories for free read on the open Internet with fake names, stories that undoubtedly haven't even been registered for functional protection in the States? Nothing but false misdirection and setting them up for false expectation. So, it doesn't help them a bit.

 

[Dream_Operator]

Again what does any of this have to do with the people at Literotica--posting stories for free read on the open Internet with fake names, stories that undoubtedly haven't even been registered for functional protection in the States? Nothing but false misdirection and setting them up for false expectation. So, it doesn't help them a bit.

Agreed, nothing really.

I was just responding to people like you, who insult and attack anyone who disagree with you with ad hominem attacks.

 

[SimonDoom]

Again what does any of this have to do with the people at Literotica--posting stories for free read on the open Internet with fake names, stories that undoubtedly haven't even been registered for functional protection in the States? Nothing but false misdirection and setting them up for false expectation. So, it doesn't help them a bit.

A person writing stories on Literotica may, as a matter of curiosity, or the sake of being conscientious, want to know what the law is concerning the use of copyrightable elements in other people's stories, even if that use is very unlikely to result in any legal action. Nobody on this thread has suggested that legal action is likely, or that an author on this site whose stories are being infringed would have a strong or worthwhile claim. It's perfectly legitimate, however, for Lit authors to want to know the answers to these questions, quite apart from their concern about ending up in court.

For instance, Nezhul, above, has maintained that characters in stories aren't copyrighted. That's wrong, as a matter of plain U.S. Copyright law. Virtually any aspect of a written story that constitutes original, creative expression can be the subject of copyright. That doesn't mean it's going to be something worth suing over, especially if it's on a site like this one. But a reasonable and conscientious author might still want to know what the law is and comply with it even if the chances of suit are very, very small.

 

[Hypoxia]

OP: You could write your PacoFear fanfic piece, giving credit to your inspiration up front, submit it, and see if Laurel approves. She may not.

Otherwise you could continue trying to gain approval from PacoFear. If not forthcoming, stop and write your own stories.

 

[sr71plt]

- Oh why bother? - You'll find out if you ever actually try it.

 

[RejectReality]

I know of at least two examples of continuations or spin-offs submitted in recent days that were rejected because they didn't have express permission of the author. At least one of them has a thread here in the AH that I don't remember enough details of to find with a Google search at the moment.

If you credit the original author, but don't have permission, it will get rejected.

If you don't credit them, someone recognizes the characters, ( likely, considering how popular Paco Fear is ) and reports it, it will get rejected after the fact.

For the purposes of Lit publication, using another Lit author's characters without asking and demonstrating permission isn't going to fly.

 

[Bramblethorn]

Sure. Before a case goes to court (trial), both sides (often) file motions for summary judgement. These are presented to a judge, who rules on them. Numerous other motions are often filed.

A judge's role is not to make judgement on the case at this point, but to determine if the case has merit to proceed further or be dismissed. Prior to the presentation of evidence, a judge tends to allow the case to move forward.

A search warrant is another example where a judge makes a ruling outside of the court of law.

P.S. The two links you provided are not official US judicial opinions, but are private opinions that carry no legal weight.

Excerpting from the second of those links:

268 F.3d 1257 (2001)
SUNTRUST BANK, as Trustee of the Stephen Mitchell trusts f.b.o. Eugene Muse Mitchell and Joseph Reynolds Mitchell, Plaintiff-Appellee,
v.
HOUGHTON MIFFLIN COMPANY, Defendant-Appellant.
No. 01-12200.

United States Court of Appeals, Eleventh Circuit.
DECIDED October 10, 2001.

1258
*1258 Joseph M. Beck, Miles J. Alexander, Jerre Bailey Swann, Kilpatrick Stockton & Cody, Atlanta, GA, for Defendant-Appellant.

Richard Kurnit, New York City, William B. Smith, Ralph R. Morrison, Anne Moody Johnson, Jones, Day, Reavis & Pogue, Atlanta, GA, for Plaintiff-Appellee.

Leon Friedman, New York City, for Pen American Ctr., American Booksellers Foundation for Freedom of Exp., Freedom to Read Foundation, Washington Lawyers' for the Arts, The First Amendment Project and National Coalition Against Censorship, Amicus Curiae,.

E. Edward Bruce, Covington & Burling, Washington, DC, for Microsoft Corp., Amicus Curiae.

Jed Rubenfeld, Yale Law School, New Haven, CT, for Georgia First Amendment Foundation, Amicus Curiae.

Hollie Manheimer, Decatur, GA, for Amicus Curiae.

Before BIRCH, MARCUS and WOOD[*], Circuit Judges.

1259
*1259 BIRCH, Circuit Judge:

In this opinion, we decide whether publication of The Wind Done Gone ("TWDG"), a fictional work admittedly based on Margaret Mitchell's Gone With the Wind ("GWTW"), should be enjoined from publication based on alleged copyright violations. The district court granted a preliminary injunction against publication of TWDG because it found that Plaintiff-Appellee Suntrust Bank ("Suntrust") met the four-part test governing preliminary injunctions. We VACATE the injunction and REMAND for consideration of the remaining claims.

...

We VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

Just so we've got this clear:

When a US Court of Appeal issues a decision, signed by three judges, that vacates a previous injunction, you are saying that this is a "private opinion that carries no legal weight"?

When that decision states that "the district court granted an injunction", you're saying that this means the case didn't go to court?

...sorry, but I'm going to need a little more convincing on this.

 

[Dream_Operator]

Excerpting from the second of those links:



Just so we've got this clear:

When a US Court of Appeal issues a decision, signed by three judges, that vacates a previous injunction, you are saying that this is a "private opinion that carries no legal weight"?

When that decision states that "the district court granted an injunction", you're saying that this means the case didn't go to court?

...sorry, but I'm going to need a little more convincing on this.

Yes, the case was never tried in court. The publisher settled and paid an undisclosed amount to a charity of the estate of the original author's choosing, and was then granted permission to publish their story. In other words: they lost.

Lifting the injunction does not alter the facts of the case, or set legal precedence. It's simply means the appellate court decided that the injunction was not justified because the case had not been adjudicated. It doesn't shed light on the actual case.

 

[KindofHere]

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[Dream_Operator]

Being the armchair judge that I am, in the Dream_Operator vs Bramblethorn debate, I ask a few things be listed as evidence ...

1. How is a precedent created.

2. Which courts have the power to create a precedent.

3. Can a precedent be created before a trial.

4. The definition of 'going to court.'

5. The definition of 'going to trial.'

Remember to cite your sources.

I'm not a lawyer and not really interested in pursuing this debate any further, but I will respond to your questions based on my knowledge and experience.

1. Precedent in US courts is generally established through appellate courts, the higher the court the higher the precedent established. The Supreme Court is the ultimate court in establishing precedence.

2. See 1.

3. No. Pre-trial motions can later be subject to appeal such as: Unreasonable search and seizure, Miranda Rights violations, Admissibility of evidence, Hearsay evidence, Anti-Slapp, etc.

4 & 5. Going to court, going to trial, means just that -- a civil trial that hasn't been settled through negotiation or arbitration and has not been adjudicated before a judge, or more likely before a jury.

 

[legerdemer]

I don't have anything to contribute to the adopting characters question, but I do have a question regarding "fake names" - when authors use pseudonyms, is(n't) their work still protected by copyright? How does that work? Isn't a pseudonym a fake name? (I understand that the relationship between a pseudonym and a real name is more easily traced than, say, between most "nicknames" here and real names.)

I ask out of sincere curiosity and total ignorance - absolutely no snark intended. I could (and perhaps will) Google, but I'd appreciate your responses.

 

[sr71plt]

In the United States you can file for a formal copyright in a pen name and that's what would appear on the copyright page of a printed work. But you have to reveal true name in the application form, which, like most public documents, can be viewed by anyone upon request.

And as has been noted ad nauseam, the "copyrighted upon creation" protection of the Berne Convention means little functionally in the United States in and of itself, as you can't get a court date unless one of the parties is holding a formal copyright. So, to effectively establish copyright ownership in the United States, there is going to be a viewable trace back to your true name.

 

[ishtat]

The Lit authors who come to this Board are absurdly sensitive on this issue. Zeb and Lynn express that point of view clearly.

However, whilst I would concede that the authors who come here tend to be the better ones on Lit, 90% of authors don't come here, and 90% of that group never wrote anything original in their lives. Their genre is derivative drivel.

I especially don't like the fact that some authors would complain and ask that stories be taken down if permission to adopt characters was not requested. Granted it's rude not to ask, but whilst the original author is entitled to feel annoyed, asking for a story to be taken down smacks at least of overplaying ones hand and perhaps even censorship. The implied ownership is neither real nor enforceable.

Anyway most fanfic is poor stuff. Vertigo J for example wrote a very popular series called "Party of Five" then stopped suddenly for no apparent reason after 20 odd chapters. Some poor mug came along and wrote a (tribute) conclusion. It was dreadful - but didn't harm the original in the slightest.

It is even more disappointing that Laurel takes down a story because of a complaint. There are far more significant abuses she could give her attention to. Her actions speak of her weakness, authors should be able to write what they please and be damned to other author's feelings.

The fact that we have endless debates about copyright is utterly risible. Lit, because it is free and smut, is essentially and in practical terms a copyright free zone. It reflects many of our authors sense of self importance rather than any reality.

 

[ElectricBlue]

... authors should be able to write what they please and be damned to other author's feelings.

Wow, what a great attitude to take.

I don't give a toss about the legal and copyright implications, they mean nothing unless you are willing to pay to protect your rights (although in Australia it is my property as soon as I create it) - but what about the ethics and morality in stealing another writer's characters and ideas?

But clearly, Ishtat has no regard for any of that.

 

[NOIRTRASH]

IRL popular characters are adopted. Almost every mystery writer has used Raymond Chandler's Philip Marlowe, the best private eye of all. I expect Le Care's George Smiley to return after Le Carre dies.

Once we shake off our PC epidemic I expect other great characters to return.

 

[ishtat]

Wow, what a great attitude to take.

I don't give a toss about the legal and copyright implications, they mean nothing unless you are willing to pay to protect your rights (although in Australia it is my property as soon as I create it) - but what about the ethics and morality in stealing another writer's characters and ideas?

Your property here at Lit has no market value and your claimed rights to it are unenforceable - so good luck with that.

The major ethical issue is not that an ambitious writer should not steal, but that they should steal well. Noirtash has mentioned that many have stolen both style and substance from Chandler. Roald Dahl stole on an almost industrial scale from HH Munro(Saki) and cheerfully admitted it. It's what writers do - all writers.

 

[SimonDoom]

Your property here at Lit has no market value and your claimed rights to it are unenforceable - so good luck with that.

The major ethical issue is not that an ambitious writer should not steal, but that they should steal well. Noirtash has mentioned that many have stolen both style and substance from Chandler. Roald Dahl stole on an almost industrial scale from HH Munro(Saki) and cheerfully admitted it. It's what writers do - all writers.

I think a healthy dose of realism and skepticism are a good thing, but this seems too cynical for me.

Off the top of my head, I can't think of specific examples that justify your statement that all writers do this. Writers take ideas from other writers -- that's not copyright infringement, so it shouldn't be called "stealing" -- but I'm not aware that "all writers" as a matter of custom "steal" the copyrightable expression of other writers and get away with it because they do it well. I don't think that's true. At least, I can't think of examples that demonstrate that it's true.

 

[Bramblethorn]

Being the armchair judge that I am, in the Dream_Operator vs Bramblethorn debate, I ask a few things be listed as evidence ...

1. How is a precedent created.

2. Which courts have the power to create a precedent.

3. Can a precedent be created before a trial.

4. The definition of 'going to court.'

5. The definition of 'going to trial.'

Remember to cite your sources.

Grr, I had a long response to this almost finished, and then I lost it in a crash. Will try to get back to this later today; sorry for the delay.

 

[KindofHere]

............