Hatrack River Writers Workshop: Fair use in referring to another author's work?

This is topic Fair use in referring to another author's work? in forum Open Discussions About Writing at Hatrack River Writers Workshop.

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Posted by Grovekeeper (Member # 5650) on :

In one of my works in progress, there are two characters that remind my MC/POV character of someone she's read about in a book.

Is it acceptable to do something along the lines of:

quote:
MC said, "Steve, I was re-reading [Some Book] last night, and I realized that you remind me of [Some Character]."
Steve said, "[Some Book]? By [Author]? I love that book!"

Or would doing that be getting too close to infringement or require permission?

-G

Posted by Robert Nowall (Member # 2764) on :

Pick a work in public domain. ("I was rereading 'Oliver Twist' last night, and I realized you remind me of the Artful Dodger.") That way you can avoid the situation. But beware if you must...

There does seem to be a limit on this. You could reference the classics of literature ("The Great Gatsby" / Daisy Buchanan), but more modern commercial fiction ("Harry Potter" / Hermoine) seems to be off-limits, or at any rate more likely to get you a nasty note from someone's lawyers.

Posted by darklight (Member # 5213) on :

I don't see a problem with that, you are only mentioning the book title and a character. I have done a similar thing in my WiP when my character compares himself to Lucy from The Lion, the Witch and the Wardrobe.

I'd say, don't worry about it.

Posted by RobertB (Member # 6722) on :

You haven't quoted anything so it's hard to see how it could be a breach of copyright.

Posted by kings_falcon (Member # 3261) on :

The characters and the book, including the title belong to the author. If you get published and the referenced items are not in the public domain, you'll need permission from the author to use them. Getting that permission could be more or less difficult depending on a number of factors.

Keep in ind that an agent/editor/publishing house might want it changed if permission can't be obtained.

Posted by Zero (Member # 3619) on :

if it was my book I'd be flattered, after all it's good top of mind awareness/advertisement plus it's free!

Posted by J (Member # 2197) on :

Kings_falcon is right. Reproduction of a character name/work/title in a directly competing work isn't the kind of thing fair use protects.

Posted by RMatthewWare (Member # 4831) on :

It would seem that if something has become a part of pop culture its fair game. Like mentioning Star Wars. As long as you don't plagiarize (and there are specific definitions of what that is--I can't remember at the time), it would seem that you're safe.

And yes, I have said, 'it would seem' twice, because I'm not a lawyer.

But don't use Harry Potter, Rowling has gotten a little sue-happy now that she has more time on her hands. In fact, I'm a little afraid even mentioning it he-

[A restraining order has been put on this post until February of 2008, while a judge reviews whether such statements violate copyright laws.]

Posted by J (Member # 2197) on :

The references to Star Wars are generally parody, and parody typically--NOT ALWAYS, JUST TYPICALLY--is considered fair use.

Posted by Zero (Member # 3619) on :

RMatthew, that's hilarious!

Posted by Grant John (Member # 5993) on :

Copyright has been covered already. So I am going to look at this from a reader point of view. I think it really depends on why you want to compare the characters, if it is early on then I might wonder if you are trying to steal the character. If it is later or out of left field like a nerd who just asked for more homework being compared to Oliver Twist, then I would enjoy the joke.

The only time I remember reading something that did this was 'The Gathering' by Isobelle Carmody who had a librarian tell her MC to read 'Knights of Dark Renown'. It was a throw away line but it caught my attention because I had read 'Knights of Dark Renown' and it made the world seem more real because the same books that existed in my life existed in this characters life.

Grant

Posted by Grovekeeper (Member # 5650) on :

The character I'd be referring to is Cerin Kelledy from Charles de Lint's "Ghosts of Wind and Shadow", so I think I'm safe from Ms. Rowling's legal beat-down, in any event.

Grant, I hadn't thought of the angle of seeming to "steal" a character; certainly that's not my intent (it was rather more of a tip of the hat), but I'll have to go back and re-read the section from the viewpoint of someone who doesn't know what I'm thinking and see how it appears.

For now, I'm going to let it stand, and if the vast collection of publishers who are going to beat each other up fort the opportunity to throw themselves at my feet in order to buy the book express concern over it, I'll probably just edit it out; it's not integral to the story. Or no publisher will ever notice it, because it's not on the front page, and they'll have rejected the book long before they get to worrying about a de Lint reference.

Thank you for all the input!

-G

Posted by Lynda (Member # 3574) on :

In your case, you're probably safe because the book hasn't been made into a film or TV show (that I know of, anyway). Warner Bros. has trademarked all the character names and other "stuff" from Harry Potter, for instance, and the same is true for Star Trek, Star Wars and other big franchises. By them trademarking the names, etc., you can't use those names for anything without permission (even more so than if they were still "just books").

Lynda

Posted by Corky (Member # 2714) on :

Grovekeeper, doesn't what you're talking about come under the category of "literary allusion"?

If you're worried about fair use in that case, you could try just referring to the character by hints that at least explain your point. That way, those who have read the book and recognize the character from your hints will feel particularly clever for having done so, and those who haven't will still "get" your meaning.

Just dropping a name or two won't really help those who haven't read the book.

Posted by baduizt (Member # 5804) on :

I'm writing from a familiarity with UK law, which is very similar to US law, but there may be some differences:

Titles cannot be copyrighted. They can, however, be trademarked. But if you're merely mentioning the trademarked name in a non-derogatory way that does not adversely affect the trademark-owner's product, then you're also fine.

For review purposes, you can quote up to 400 words or multiple extracts up to 800 words, with none greater than 300 words, so long as it is less than 10% of the total word count of the work cited. However, you should still make your references transparent.

The best thing to do would be to write to de Lint anyway, just saying what you have mentioned, just to cover your own back. If he doesn't get back, put it in your foreword that you contacted him and would be grateful for clarification.

However, for him to get angry, he would have to see the book (or a friend would).

Adam
xxx

Posted by teddyrux (Member # 1595) on :

quote:
MC said, "Steve, I was re-reading [Some Book] last night, and I realized that you remind me of [Some Character]."
Steve said, "[Some Book]? By [Author]? I love that book!"

This only works if the reader has read and remembers the book. You can't guarantee that. If the reader hasn't read the book, and you can't assume he has, then you have to explain the resemblance. With this in mind, I'd make up a character (could be similar to a character in a book as long as he's not a 900 year old green Jedi master) and that only one of them knows and very briefly explain the similarities.