Borrowing Characters
Would it be a violation of copyright and/or plagiarism to “borrow” a character from another novel?
For example, I have a short story and want to include as a side character Ender (of Ender’s Game). I would preserve Ender’s name, family, personality, etc. But Ender would only play a small part in the story.
It’s not the brightest idea, but I’m curious if it’s legal in the US.
This post was sourced from https://writers.stackexchange.com/q/42996. It is licensed under CC BY-SA 3.0.
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No, absolutely not.
Copyright owners have the exclusive right to produce derivative works based on their properties. Thus, using Ender himself as a character in your story without permission from the copyright owner - even for one scene, even for one sentence - is copyright infringement. It doesn't matter where your work is published, it doesn't matter if you're selling it or accepting donations or not profiting in any way except publicity.
The exceptions are:
Criticism. You write a (usually) nonfiction work and talk about Card's novel (or the movie, or both) in it. Example of criticism.
Parody. You write a work of fiction to deliberately make fun of Card's work. Note that comedy and satire are not necessarily parody: the artistic qualities of the work itself must be the subject of commentary, criticism and ridicule. For example, you can't have Ender get deployed to the Middle East to criticize US presence in Iraq, but you can have Ender get deployed to the Middle East and fail catastrophically to showcase Card's bad (in your opinion) grasp of real military tactics. Example of parody.
Nominative use. You can have characters in your work of fiction read, think about, and discuss Card's novels, the movie, or the character of Ender. Example of nominative use.
Importantly, even if you keep to these three exceptions, there's still a possibility that (1) you get sued and (1a) lose or (1b) win the suit but not your legal costs, or that (2) your work is deleted by the hosting platform (Youtube, Wordpress, etc) (2a) following a copyright complaint or (2b) for no reason at all.
If a copyright complaint is involved, try contacting free speech nonprofits such as the Electronic Frontier Foundation.
If a "free" platform arbitrarily deletes your work as their Terms of Service allow them to, they're legally in the right and your best bet is making noise and creating PR problems for them. There have been cases when the copyright holder intervened on behalf of the critic to bring their content back to the platform.
If your case does not fall under fair use, you need to get permission from the copyright owner and hire a lawyer, preferably before you invest time and money into producing your work. Some owners are bound by pre-existing obligations and cannot actually issue new permissions at will. Words of encouragement on Twitter are not legally binding and won't hold up in court against Tor or Lionsgate.
This post was sourced from https://writers.stackexchange.com/a/43025. It is licensed under CC BY-SA 3.0.
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I am not a lawyer, but you really should not do this. Orson Scott Card (OSC) and any partners he has (publisher, movie studios) own "Ender", and you cannot profit from it in any way whatsoever. OSC and his partners are rich enough to sue you even if you don't make any money, and may even be legally obligated to sue you in order to protect their property, if your work is public in any forum. Including all the details of Ender and his family would likely be held by a court to be "substantially the same" text as what OSC wrote, So I think you would be held liable, not only for any profits you made, but extra damages as well.
The only plausible reason for you to do that is to increase the appeal of your story, and hence the financial value of your story, in the court's view by stealing the intellectual property of OSC.
Use your own imagination. Do not presume that because others writing fan-fiction are getting away with it, you can get away with it too. They may not be poking at the same bear as you would be, and in crime the excuse that other people are getting away with it all the time doesn't hold any water for defense.
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