Adopting Characters?

[SimonDoom]

For Ishtat & Simon

That line ... steal well ... it's been used by many people throughout time, you can find that quote used by several different writers if you just google it.

But stealing well and stealing exact characters are two different things. Stealing my characters, names, mannerisms, personality, history (not creating your own) feels wrong. I'd hate it.

I loved the Wheel of Time series for about the first 5 books (long series, got tired) but there wasn't an original idea in that entire series and there was a scene lifted from the 1964 movie Zulu that was nearly word for word, but what Robert Jordan (even his pen name is a Hemingway hero) stole, he made his own and tweaked it enough that it was as original as a modern day story can be.


Now, if I decided I liked Robert Jordan's story so much and just stole his characters and wrote a follow up book in his world, that's not stealing well, that's just stealing.

If someone were to steal Robert Jordan's idea well, you wouldn't be thinking - this idea is stolen, you might think 'influenced by' ... 'similar to an extent' ... but you wouldn't think 'stolen.'

That's just how I see the 'steal well' advice I've seen before.

My objection to the word "stealing" is that it's only stealing if it's wrongful; otherwise, by definition, it's not stealing. And it's only wrongful, in this context, if it's either plagiarism or copyright infringement. There's nothing wrong with taking only the ideas of other authors and artists and redoing them in some way; all art does that. It's only when one takes the particular, original expression of the ideas of the author that it's infringement, and therefore "stealing", if you want to use that word. I don't see top-notch and well-known authors doing that and getting away with it on the scale Ishtat implies is common. But I'd be very interested in examples of characters being taken that show I'm wrong.

 

[Zeb_Carter]

Five Minutes and Thirty seconds of 30 odd song using the same four chords.

 

[KindofHere]

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

 

[Hypoxia]

"Theft is the taking of another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it." Using another's characters and plots does not deprive the original author of them, especially if that author is dead. Go ahead and write your Conan pastiche or Godzilla fanfic.

"Plagiarism is the 'wrongful appropriation' and 'stealing and publication' of another author's 'language, thoughts, ideas, or expressions' and the representation of them as one's own original work.... Plagiarism is not in itself a crime, but can constitute copyright infringement." Substantial copying of another's expressions without citation would indeed infringe.

LIT is its own private universe, unbound from those definitions. Laurel will not approve stories based on another's work without their explicit permission. It's literary tackiness, not theft. Authors (myself included) may end some pieces with invitations for others to write completions, sequels, spin-offs, etc. Such invitation and permission is fine; proceeding without them is tacky.

 

[Zeb_Carter]

From what I've read, can't copyright chord progression. Music industry has their shit together.

You bet, but for every song someone else sings or plays there are royalties to be paid. Each and every time. Also permissions have to be given.

The copyright holder to Star Trek is currently in litigation with a fanfic film. It looks like the Star Trek suit will be won by the copyright holder.

 

[sr71plt]

"Theft Using another's characters and plots does not deprive the original author of them, especially if that author is dead. Go ahead and write your Conan pastiche or Godzilla fanfic.

Conan, as a character, came out from underneath copyright ten years ago, but Godzilla, as a character, is still under both copyright and trademark, and it is theft to use that character without permission. You'd probably not be using it with any significant profit to be had, but if you did, you'd best have a good lawyers, because that's a character with very active lawyers.

Literotica forums: a great place for disinformation on copyright protection.

 

[Hypoxia]

Conan, as a character, came out from underneath copyright ten years ago,

It's not that simple.

Literotica forums: a great place for disinformation on copyright protection.

Note that I did not refer to copyright, only to Laurel's practices, and to the definitions of theft and plagiarism. Theft willfully removes something from its owner. Plagiarism copies something without giving credit. 'Adopting' another's plot and players is neither, but violates Laurel's guidelines and (in the mainstream) may keep lawyers busy if enough money is involved. Theft is a crime; plagiarism, copyright infringement, and lazy authorship are not.

You often point out the general futility of USA copyright law actions. My only advice on copyright is that those concerned should look into it as deeply as they can stand.

 

[laptopwriter]

IslandCove,

If you're just starting out as a writer I certainly wouldn't recommend doing so by copying someone else's work in any way, shape, or form.

When I create a character I develop an attachment to that character. Should I write a follow-up I make sure I stay true to the characters as I originally wrote them.

I would personally consider it offensive if someone came along and just adopted my characters and decided to write them his way.

My suggestion would be to create your own characters.

 

[sr71plt]

It's not that simple.

Note that I did not refer to copyright, only to Laurel's practices, and to the definitions of theft and plagiarism. Theft willfully removes something from its owner. Plagiarism copies something without giving credit. 'Adopting' another's plot and players is neither, but violates Laurel's guidelines and (in the mainstream) may keep lawyers busy if enough money is involved. Theft is a crime; plagiarism, copyright infringement, and lazy authorship are not.

You often point out the general futility of USA copyright law actions. My only advice on copyright is that those concerned should look into it as deeply as they can stand.

You referred to theft. That's taking it beyond Laurel's realm. And my post doesn't deal with plagiarism at all.

I stand by my statement that Godzilla, as a character, is still under both copyright and trademark and that it's theft if you use the character without permission. When you take and use someone's property without permission, you're stealing it. You're a thief.

And, god, it's useless trying to talk to you folks here about how copyright works. It's also irrelevant as I doubt anyone here actually bothers to go through the copyright process and shouldn't anyway, as you've given your stories away by posting them here for free. You have nothing of legal value to protect.

 

[KindofHere]

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

 

[ChloeTzang]

If I want to know about copyrights, I'll consult a copyright lawyer.

Lawyers? That'll cost.

 

[Green_Knight]

Quoting from the work is copyright material.
Using characters is not. It's not copyrighted and there's no way yo protect them unless you register a trademark on their name or something.
Even re-telling parts of the story in your own words - would be plagiarism, but not punishable by law.

That's why fanfiction never requires author's consent. And I think it's better that way.

The law on copyright of characters - and the associated area of sequels varies by jurisdictions. In the US a character can be subject to copyright and the whole subject of 'sequels' is a difficult legal area (see http://www.ivanhoffman.com/characters.html). However, in the UK the courts have been reluctant to extend copyright to characters and attempts there to use the law on 'passing off' to achieve that effect have not generally been successful - eg Doyle v. London Mystery Magazine (1949).

 

[Green_Knight]

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...

Incorrect. It's not a question of losing. It has nothing to do with justice; it's a question of pure economics. How much is it going to cost to fight this case (lawyers fees, management time and effort, possible bad publicity, etc, etc, etc) and would it be cheaper to settle. All over the world millions of cases are settled on this basis every year. All over the world, millions of people try it on every year; they know that, provided they're not too greedy, most organisations will settle up rather than go to the bother of fighting the case. (They're called parasites.)

It works the other way too. Use a Getty photo library picture without permission and you'll get a demand for a very, very large sum. You can ignore it, of course, but you'd better hope that Getty isn't a large powerful organisation employing a battery of legal staff to protect its rights and churn out court writs on a production line basis.

 

[Green_Knight]

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.

In most of the world there is no copyright registration process and work is protected by copyright from the moment it is created. It is irrelevant what name it is written under. The only issue might arise if, having created a work under a pseudonym, you sue someone for copyright infringement. The court would then, quite reasonably, expect you to prove that you were the creator. That shouldn't be a problem if the work has been formally published in some way.

 

[Green_Knight]

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

That is nonsense. Courts decide such legal matters on principle, not on market values or on the fact that the work in question has appeared on a porn site. A judgement made in a case concerning a work on a porn site creates just as much a precedent as any other work. Market values only come into it when, the court having decided on the legal issues, the question of damages arises.

If someone infringes my copyright in a work of mine on Lit, there is absolutely nothing to stop me suing that person and, if I win, that person will have to pay the costs of the action, mine as well as theirs. Any damages I might win, though, would - in many cases but not necessarily all - be token. The risk to me, of course, comes in the chance that I might not win the case - on some technicality, perhaps - and I would end up having to pay all the costs, but if some scrote has ripped off my work and I happen to be wealthy enough to drag him/her through the courts and can afford the risk, why not?

 

[Bramblethorn]

(answers specific to US legal system except as indicated; some countries have very different systems)

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.

This is a complex question because the notion of "precedent" isn't a nice simple law on a statute book, it's more like a philosophical principle.

The underlying doctrine is stare decisis. stare decisis: consistency in court decisions is a Good Thing because it avoids having people go back to court to re-fight the exact same issues that have already been fought, and it gives people some certainty about what their rights are. If I'm thinking about releasing an unauthorised parody song, I can look at Campbell v. Rose-Acuff and expect that my song will be handled in a similar way (unless the circumstances are different in some important way, of course).

So, suppose Court A has to make a decision about some point of law. There are two possible interpretations X and Y, both reasonable. But after listening to arguments and thinking hard about it, Court A decides to go with interpretation X.

Some time later, Court B has to make a decision about the same point of law. The arguments for X and Y are the same as before - they both still seem like reasonable interpretations - but this time X also has the weight of stare decisis on its side. Even if Court B might otherwise lean towards interpretation Y, that's a strong tiebreaker.

So just about any decision made by a court on a point of law creates some sort of precedent, because judges value stare decisis. But the strength and the scope of that precedent depends on jurisdiction.

In the US federal system there are three tiers of court: district courts, circuit courts, and the Supreme Court. Let's suppose I'm a judge on a district court in Tennessee, which is under the Sixth Circuit Court of Appeals.

If I go against a precedent set by the Sixth Circuit, and somebody appeals my ruling, that appeal will be heard by the Sixth. They will almost certainly overturn my ruling - they already made their own call about this issue, and now they have stare decisis supporting their previous interpretation as well. This will look very, very bad for me. Similarly, if I go against a SCOTUS precedent, the Sixth will almost certainly smack it down.

So, decisions made by the Sixth or by SCOTUS are considered "binding precedent": there's a very strong expectation that I will adhere to them. Failing to do so might even count as professional misconduct.

But this is not an absolute rule. Once in a while, a court will decide to break with precedent because there are other factors that outweigh stare decisis - e.g. the world has changed and the old interpretation is now more trouble than its worth, or it's become clear that the old decision was simply wrong. So once in a while, SCOTUS may overturn its own precedents.

In that sense, "binding precedent" really means "binding unless you have an exceptionally good reason".

More discussion here: http://www.cardozolawreview.com/content/35-5/BURTON.35.5.pdf

Decisions made by another court outside my line of appeal (e.g. a circuit court outside my region, or another district court) don't have that same binding status, because if somebody does appeal my ruling it's not going to be heard by the court that made the previous ruling. But they may still be considered "persuasive precedent" - if a previous court has put a lot of thought into the same issue, obviously it's a good idea for me to look at what they thought about it, even if I'm not obliged to follow their decision. Even a decision by a foreign court can be persuasive precedent if the relevant laws are similar enough.

So, in brief: any court creates a precedent any time it makes a decision on a question of law, but the scope and strength of that precedent depend on the court.

(BTW, looking at the appeal court decision again, note the amicus curiae participants. An amicus is one who isn't a party to the suit themselves, but has an interest in the case - typically because they care about the precedents it might set. If this really was nothing more than "private opinions that carry no legal weight" it seems kinda odd that Microsoft would send a lawyer along to play amicus!)

3. Can a precedent be created before a trial.

Stare decisis could still be a consideration in some such matters - judges ought to be consistent in how they approve/reject warrants etc. I don't know if it would be referred to as "precedent" though; given that this sort of thing is usually happening at the bottom of the chain of appeal, it would usually only be persuasive.

4. The definition of 'going to court.'

Merriam-Webster defines that as "to start a lawsuit".

I think at the point where a decision says that an issue was "decided October 10, 2001" by the "Eleventh Circuit Court" it's reasonable to say that it has "gone to court".

5. The definition of 'going to trial.'

Remember to cite your sources.

(and gonna pass on that last one, because it's past my bedtime and I've had too many late nights lately)

 

[colddiesel]

That is nonsense. Courts decide such legal matters on principle, not on market values or on the fact that the work in question has appeared on a porn site. A judgement made in a case concerning a work on a porn site creates just as much a precedent as any other work. Market values only come into it when, the court having decided on the legal issues, the question of damages arises.

If someone infringes my copyright in a work of mine on Lit, there is absolutely nothing to stop me suing that person and, if I win, that person will have to pay the costs of the action, mine as well as theirs. Any damages I might win, though, would - in many cases but not necessarily all - be token. The risk to me, of course, comes in the chance that I might not win the case - on some technicality, perhaps - and I would end up having to pay all the costs, but if some scrote has ripped off my work and I happen to be wealthy enough to drag him/her through the courts and can afford the risk, why not?

On principle eh! actually on the facts and the law.

Nothing to do with market values eh! Try even getting a hearing without showing evidence of financial loss - no court anywhere will give you a hearing . How the fuck can you claim financial loss when you have already given it away free?

Reckon you would get costs eh - You will not, especially in USA. They have a thing called 'The American Rule' applicable to civil disputes. Look it up, you might learn something.

That's just three points but more than enough to show you haven't a clue what you are talking about.

Finally, beware Pilot and Ishtat. Pilot is consistently and perhaps irritatingly right on American copyright issues. Ishtat doesn't contribute so often, but his usual style is to insert himself into a debate with a slightly outrageous comment, then when his opponent over-reacts, neatly dissect him. Both too good for you methinks.

 

[Green_Knight]

...Some time later, Court B has to make a decision about the same point of law. The arguments for X and Y are the same as before - they both still seem like reasonable interpretations - but this time X also has the weight of stare decisis on its side. Even if Court B might otherwise lean towards interpretation Y, that's a strong tiebreaker.

The tricky problem there is that two cases are rarely ever the same. (If they are, then sensible legal advice would be to settle quickly before costs mount up because you haven't got a cat in hell's chance.) So, even in quite similar cases, there may be specific points of difference which mean that interpretation X is no longer the correct one.

 

[Green_Knight]

On principle eh! actually on the facts and the law.

Nothing to do with market values eh! Try even getting a hearing without showing evidence of financial loss - no court anywhere will give you a hearing . How the fuck can you claim financial loss when you have already given it away free?

Reckon you would get costs eh - You will not, especially in USA. They have a thing called 'The American Rule' applicable to civil disputes. Look it up, you might learn something.

That's just three points but more than enough to show you haven't a clue what you are talking about.

Finally, beware Pilot and Ishtat. Pilot is consistently and perhaps irritatingly right on American copyright issues. Ishtat doesn't contribute so often, but his usual style is to insert himself into a debate with a slightly outrageous comment, then when his opponent over-reacts, neatly dissect him. Both too good for you methinks.

But the US is only one jurisdiction. And one that is out of step with most of the rest of the world as far as copyright is concerned.

 

[Bramblethorn]

That is nonsense. Courts decide such legal matters on principle, not on market values or on the fact that the work in question has appeared on a porn site. A judgement made in a case concerning a work on a porn site creates just as much a precedent as any other work. Market values only come into it when, the court having decided on the legal issues, the question of damages arises.

This may be true in some jurisdictions for all I know, but not for the USA. 17 USC 107 states that one factor to be considered in determining whether copyright has been violated is "the effect of the use upon the potential market for or value of the copyrighted work." If the market value is zero, then that makes it harder to establish infringement.

If someone infringes my copyright in a work of mine on Lit, there is absolutely nothing to stop me suing that person and, if I win, that person will have to pay the costs of the action, mine as well as theirs.

17 USC 412 specifically says that you cannot receive statutory damages or lawyers' fees for any infringement that happened before you registered (unless you registered within three months of publication).

 

[Bramblethorn]

But the US is only one jurisdiction. And one that is out of step with most of the rest of the world as far as copyright is concerned.

Be that as it may, if somebody in the USA pirates your work, it's US laws that are relevant.

 

[SimonDoom]

This may be true in some jurisdictions for all I know, but not for the USA. 17 USC 107 states that one factor to be considered in determining whether copyright has been violated is "the effect of the use upon the potential market for or value of the copyrighted work." If the market value is zero, then that makes it harder to establish infringement.

.

This isn't quite true. Section 107 concerns fair use, not infringement. It's a defense that arises, and for which the defendant bears the burden of proof, only after the plaintiff has made an initial case for infringement. A plaintiff can make a case for infringement without proof of actual damage; section 502 makes injunctive relief available without regard to whether there are any damages from the infringement.

 

[Green_Knight]

Be that as it may, if somebody in the USA pirates your work, it's US laws that are relevant.

That may be true as far as printed work is concerned, but the internet is a whole different ball game where the rules are far less clear. Take, for instance, the fact that Google, a US company operating out of the US, is careful to take account of European law.

 

[lovecraft68]

All I'll add reading through this is what I recently said to someone who informed me they found a couple of my stories on another site.

If you want nothing stolen, don't put it here for free. If you do and it gets stolen you got what you asked for and CD just made the point I was going to...good luck with suing for something you make no money on.

Is it wrong to take someone's material? Yes. Is it against the law? Technically I suppose it is. But can you get anything out of it? No.

The topic of using another's characters is for me something that simply comes down to a good writer should be able to create their own. The whole homage thing is flattering, but every reader here always wants more from our characters, that's a compliment, but you shouldn't go on and write your own take without their blessing.

Illegal? No. Unethical, yes.

 

[Bramblethorn]

This isn't quite true. Section 107 concerns fair use, not infringement.

"the fair use of a copyrighted work...is not an infringement of copyright"

The whole point of fair use is that it's part of the rules on what is and isn't infringement; hence, anything that defines fair use concerns infringement.

That may be true as far as printed work is concerned, but the internet is a whole different ball game where the rules are far less clear. Take, for instance, the fact that Google, a US company operating out of the US, is careful to take account of European law.

Google's headquarters is in the USA, but they're a multinational company that operates from many countries around the world including a couple of dozen offices in Europe. They do billions of dollars of business in Europe annually. So of course they have to pay attention to European law.

If some rando in the USA rips off your work and publishes it on a US-based website, you would have a great deal of difficulty convincing a European court that this infringement is within their jurisdiction. Even if you did find some technicality to justify a European jurisdiction, a culprit who doesn't have European assets can pretty much ignore that court.

Were it not so, any organised crime syndicate with access to a crooked judge anywhere in the world could start extorting people in the USA. Rip off a story, publish it backdated to before the original, then sue the real author for "infringement".