Copyright in Characters

     I would like to revisit the thread from last month concerning infringement of the copyrights in fictional characters.

     Assume hypothetically that I write a novel in which famous fictional characters from our popular culture act differently then they have been depicted as acting in the authorized versions, the purpose being to have the reader look at popular culture from a different perspective or perhaps just humor. Assume further that I do not use any visual representations of the characters so I am not infringing the copyrights in their appearance. Assume further that I do not repeat any of the characteristics of the characters as depicted in the originals; rather, I just use their names and assume the reader will bring to the novel all of the characters' characteristics. In effect, I would just be incorporating the characters by reference -- although the characters would be the principal actors in my story. For instance, when my James Bond ordered a drink, he would merely ask for "the usual" -- we all know what that is. Finally, assume I avoid any Lanham Act problems by making it clear that I am using these characters without any authorization.

     I believe that my novel would not be actionable since I would have copied nothing but the uncopyrightable names of various famous characters. Agree? If not, what exactly have I infringed?

     The purpose of the question is to challenge the assumption that there is a copyright per se in a fictional character, as opposed to the copyright in the expression by which the character is presented to the world.

• Paul Sleven (psleven[_at_]cybernex.net)