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Is it a copyright violation to have the character share some characteristics with a known character?


More specifically, consider the following examples: 1) Say my protagonist is a boy who has a lightning-bolt scar on his forehead, wears round glasses, and has dark hair and green eyes. His name is NOT Harry Potter, he is NOT a wizard, and he DOESN'T attend Hogwarts.

Would this be considered copyright? After all, it's perfectly plausible that there could exist a person with these physical attributes.

2) Can my protagonist have a nickname like "Harry Potter" or "the muggle Harry Potter"? (again assuming he's not a wizard etc.)

Edit: Thank you for your responses. I have one more question. When referring to pop culture in your work, say the Harry Potter series, are you allowed to refer to characters by their nicknames (e.g. the Boy Who Lived)? For example, I know something like "Hey, you look just like Harry Potter!" is allowed, but is "Hey, you look just like the Boy Who Lived!" allowed?

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4 answers


Copyright law varies by country, so there is no simple answer.

But if the first thing readers think of after reading the character description is someone else's character... then you are in dangerous territory, and could absolutely be sued for infringement or get a Cease and Desist court order levied against you, among other things.

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This post was sourced from https://writers.stackexchange.com/a/48787. It is licensed under CC BY-SA 4.0.



I am not a lawyer. Copyright violation is often up to human interpretation (not yours) by a judge or jury.

They get to decide whether you are stealing a character or not. Chances are, they will decide a lightning bolt scar, round glasses, etc is so unique it can't be anything BUT plagiarism, so they will find you guilty of copyright violation, perhaps trademark infringement, and theft of intellectual property.

Harry Potter's persona belongs to JK Rowling and her contractual partners. The underlying issue is, broadly, that you cannot steal somebody else's imagination in order to make yourself money. There are huge exceptions when it comes to generalities that you can show are present in multiple works over time. Nobody can stop you from writing a murder mystery, or clever super-observant detectives, or space operas like Star Trek and Star Wars, or about a magic school for kids, or magic portals to a magical land. You can write treasure-hunt adventures, similar to Indiana Jones but with different protagonists. Those things have been done many times, in print and film, and thus no particular person or entity owns them. You can follow plot points: Hundreds of romantic comedies follow the same broad plot, millions of novels adhere closely to the Hero's Journey.

But when it comes to specifics that exist in only ONE work, then you are in trouble. It doesn't make a difference what might happen "In Real Life", what matters is, how many authors can you find with a male character of that age with a lightning bolt scar and round glasses, etc. When you add enough characteristics of any kind to narrow the field to one, then you are in trouble. I imagine just the lightning bolt scar on the forehead is sufficient in this case.

I will also note that if found guilty, the penalty can be greater than just all the money you made. The offended party can claim your work has damaged their prospects by polluting and diluting their brand, and receive not only the money you made, but significant compensation for the damages as well.

But again, I am not a lawyer, you should consult one before you publish anything like this. Or follow my advice: Use your own imagination, don't try to take shortcuts using anybody else's; it is stealing.

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A useful way to think about this is, every story you write is set in a world of your own invention, that sits in some relationship to the real world that we live in. The real world that we live in includes J. K. Rowling and the Harry Potter books. (Which created a world of their own that sits in some relationship to the real world we live in.) You can include the existence of those books in your invented world, just as Rowling can include the existence of Kings Cross station in hers.

The world you create can be a world in which the Harry Potter books exist, just as it can be a world in which the Bible and the works of Shakespeare exist. Thus characters in your stories can make reference to characters in the Harry Potter books, just as they can make reference to characters in the Bible and in Shakespeare. Thus saying that your character looks like Harry Potter is fine, in principle.

What is not fine is setting your story in the world that J. K. Rowling created for the Harry Potter books. That is not our world. That is her world. Setting a story in that world, or a world derived from that world, explicitly or implicitly, is wrong. (Unless it is done for purposes of parody. See Bored of the Rings, for example.)

There are some technical restriction on top of this. Just because you set your story in a world in which the Harry Potter books exist, does not mean you can quote large sections of them verbatim. But the general spirit of the think is that you can populate your world with the artefacts of this world (the Harry Potter books, qua books) but not with the artifacts of other writer's invented worlds (Hogwarts, or anything obviously derivative of Hogwarts, for instance).

This does not mean you cannot have a school for wizards, of course, or Ursula Le Guin (to pick but one example) would have had a massive copyright claim against Rowling. It is not the general features of an invented world that are off limits, but its specifics. We can all play in the same sandbox. You just can't take my sand.

But this is all the principle of the thing, as regards but the law and the honor of the profession. Specific laws vary from one jurisdiction to another and if you feel you are in danger of violating them, consult a lawyer, not the Web.

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Can my protagonist have a nickname like "Harry Potter" or "the muggle Harry Potter"? (again assuming he's not a wizard etc.)

Under "common law", which is the basis for most laws in English speaking countries, the concept of the reasonable man determines many things. For plagiarism you have to ask whether a reasonable man would believe that it was copied?

Consider a story with a character called "Harry Potter Junior", who receives instruction on magic. The plot involves wizards, trolls, goblins, elves, etc., and Harry's fight against evil.

Would a "reasonable man" think that was a case of plagiarism?

What if the story were actually published in 1986, 11 years before J. K. Rowling's novel?

What if I didn't make up this hypothetical situation and it actually happened?

See: Troll (film) - Wikipedia

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This post was sourced from https://writers.stackexchange.com/a/48790. It is licensed under CC BY-SA 4.0.