Who owns the famous characters of literature? Could you write a novel in which Dracula begins a tempestuous affair with Jane Eyre, their luxurious liaisons financed by Shylock, their every whim anticipated and met by the unflappable Jeeves? I’d read that. But would the work be legal?
The problem isn’t only whether you are actually infringing someone’s rights, but whether a rights holder might believe that you are and make your life wretched taking you to court and arguing the toss. Writers usually haven’t time or cash to waste on barristers.
The act of copying someone else’s work is severely restricted. Adapting it is still regarded as a “derived work”, in the legal parlance, and the original author will have every right to object and seek any profit you may make from selling that derived work. Even if you make no money from your creative endeavours, copying is still an infringement and you may face legal action. If the original author loses sales as a result of your work, they may seek financial recompense too.
You may have noticed the sudden flurry of Sherlock Holmes based dramas of late – these were released precisely seventy years after the death of Conan-Doyle, when the original work came out of copyright. Seventy is still the magic number of years after which much creative work passes into public domain. In the case of TV series, it’s 50 years after the final broadcast. At last you can legally explore Holmes evident homoerotic fixation with Watson, as so much covert fan fiction has done for decades. So in the example given above – Dracula, Jane Eyre, Shylock, Jeeves – all those characters are now in the public domain and are fair game, with the exception of Jeeves; Wodehouse died in 1975, so until 2045 you’ll need to invent your own multi-talented manservant.
The situation is quite different here in the UK than in the US, where authors’ inventions and claims to them tend to be guarded more zealously. In the US, characters can be copyrighted; in the UK, they can’t, unless they are seen as a “brand” – Peter Rabbit, for example, is a brand, so don’t start scribbling about his newest adventures. In the US, authors also own all sequel rights; famously, an author and publisher trying to retell Gone with the wind from a slave’s point of view, found themselves sued by the estate of Margaret Mitchell. The case was dropped when the publisher agreed to make a donation to one of Mitchell’s pet projects. Let’s hope they sold enough copies to make it worth their while, although from its Amazon rating I very much doubt it.
You can often get away with a good deal by describing your work as “unofficial’. Search your library catalogue for “unofficial’ and “Harry Potter” and marvel and despair at how many titles get thrown at your jaded face. But if J K Rowling decides to take you to court, would you care to back her bank balance against yours?
Some estates seek out sequels from new writers, of course, and are delighted when new talent continues the brand. Susan Hill was asked to write a sequel to Daphne De Maurier’s Rebecca, and was given the proviso that she must remain true to the original, rather than create a spin-off based on some tenuous link. The Fleming estate has commissioned several new writers to create homages to Bond, most famously Sebastian Faulks, to commemorate particular anniversaries or to keep the Bond brand alive. In 2017 the Wodehouse estate approved Bertie Wooster reimagined as an incompetent spy, with language and humour remarkably close to the original. In these instances it’s essential you adhere to the author’s original creation as faithfully as possible.
In short, then, you must either make your material significantly different, or alternatively, for the true fan, craft your book to be a faithful copy, a sycophantic homage, then seek permission from the author or his estate; or wait 70 years, and do as you please.
Creating your own memorable, iconic characters, whose words and personalities echo through the ages, is probably something to which we should all aspire. And not only for legal reasons.