Writers in the Storm

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February 13, 2015

Hogwarts vs. the Hindenburg: Copyright Rules for Settings

Susan Spann

SusanSpann_WITSAs a publishing lawyer, I often get asked about copyright in scenes and settings, and how the law of infringement applies when stories are set in similar locations.

Like many other copyright questions, the answer depends on a number of factors. However, unlike many legal questions, the guidelines are straightforward and fairly easy to analyze.

The key to understanding how copyright (and infringement) relates to settings is remembering that copyright law protects an author’s unique expression, but does not protect either facts or the “building blocks” of expression.

A setting which is unique, or created entirely by the author, receives far more protection than one which is based on historical events or real places…but that’s not the end of the story. There’s a spectrum of creativity, and a setting (like a character or other elements of an author’s work) receives increasing protection as the author and the description moves along it.

Let’s take a closer look.

Copyright Law Does Not Protect Historical (or other) Facts.

If you write a historical novel based on the explosion of the Hindenburg, you can’t prevent other authors from using that topic. You cannot prevent them from using the Hindenburg as a setting, and you can’t claim infringement if the real historical figures who appear in your novel also appear in another author’s work.

Copyright Does Give (Limited) Protection to Unique Expressions of Historical Events.

You can protect the unique, creative way in which you describe and express the historical events, but the closer your expression comes to duplicating historical facts, the thinner the protection you receive. If your novel includes the actual newspaper headlines that appeared on the day the Hindenburg exploded, you can’t stop another author from using them also. However, if you create a fictitious newspaper for your novel, and write a fictitious headline, you can prevent other authors from using that portion of your work.

Fictitious Locations Based on Genuine Ones Receive More Copyright Protection Than Real-World Locations.

The layout, construction, and other facts relating to real world locations qualify as “facts” for which copyright protection is unavailable. If you set your novel in and around the Empire State Building, and use accurate descriptions of the location, you can’t prevent other authors from using that location (and describing it) also. You can prevent outright copying…unless the part of your work that’s copied is merely a fact (for example, the number of windows in the Empire State Building which face south, or the number that catch the sun at 4pm on a January afternoon).

However, the level of protection increases if you use a fictitious building based on—but different from—a real one. A good example of this is Nakatomi Plaza, the building which serves as the setting for the movie Die Hard. Nakatomi Plaza isn’t a real place, but the building the director used to represent it is real—it’s called Fox Plaza, and it’s located in Century City, California. By fictionalizing the building, the scriptwriters allowed themselves not only more leniency in “constructing” sets, but also ensured that no one could legally “lift” those descriptions and sets for use in another work.

Completely Fictitious Locations Receive the Highest Level of Copyright Protection.

J.K. Rowling’s wizard academy, Hogwarts, is located “in a castle” somewhere in England. Readers will notice that Rowling didn’t name the castle or its exact location, enabling her to construct a completely fictitious setting which would receive the highest possible level of copyright protection. It doesn’t matter whether or not she used a real-world castle to inspire Hogwarts, or even if she used some parts of that castle as the basis for Hogwarts’ rooms. By making Hogwarts a completely fictitious place, she ensured that it belonged to Harry Potter’s world—her world—alone. If you copy anything from Hogwarts (aside from the “basic building blocks” – for example, and no pun intended, the fact that the castle is made of stone), you’re probably infringing her copyright.

What is a “Basic Building Block” of Expression?

The answer is as simple as sandwich cookies and Oreos. The idea that a baker could take two cookies and put a filling between them, thereby creating some kind of “cookie sandwich,” is a basic building block of expression—a generic concept. Anyone can make a sandwich cookie, using any kind of cookie and any filling the creator desires. However, if you use a particular recipe of chocolate cookie, with designs on one side, and you fill it with a specific mixture of white, sugary filling, and if you have the courage to stamp the word “Oreo” on the side…you’ve copied enough of something that belongs to someone else that you’re probably going to get sued. In the baking world, the lawsuit would be for trademark infringement. If you duplicate an author’s wordsmithed Oreo, the result is copyright infringement.

The basic building blocks of expression are generic concepts, settings, and character archetypes: the whodunit mystery, the subway, and the cop.

The farther an author strays from those basic, generic archetypes, the higher the level of copyright protection his or her creation will receive.

Any author can write about “a cop” or use a policeman as a character. An ex-cop who has become a butcher receives a little more protection. But give that ex-cop butcher a love of tapioca pudding and a phobia of vacuums and you’re getting into the territory nobody else can copy without consequences.

The takeaway lesson? It’s fine to use fact-based settings (and most of us need to, when our works are based in the “ordinary world”) – but know that other authors can use those settings too, as long as they don’t copy your work. However, the more creative you can be, the more protection your work receives…so write the best, and most creative story you can, and when you do use facts, be sure to express them in your own unique voice and manner.

Do you have copyright questions for Susan? Have you used historical settings in your books? Share them all with us down in the comments!

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About Susan

BladeCoverSusan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases in July 2015.

Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

29 comments on “Hogwarts vs. the Hindenburg: Copyright Rules for Settings”

  1. Brilliant, Susan. You've taken a complex (to me) issue and broken it down to easy to understand black and white (as black and white as an Oreo - I'll remember that forever!)

    By the way, if I wanted to use 'Oreo' in a story, I'd have to call it a 'sandwich cookie', right?

    1. Thanks Laura! (Kitty is correct, by the way - you can use a trademarked product in your fiction, but you can be sued for trademark derogation/defamation if you malign it or use it in a way that might reduce the value of the brand. So when they're good, they're Oreos...and when they're bearing arsenic they're SAMMICH COOKIES.)

    1. One other piece of advice for that, Lindsay: the more creative you get with brands (for example, creating your own local coffee house instead of using Starbucks) and places, the less likely you are to accidentally "date" your fiction. Movies are a really quick way to show an example of this: take a look at the promo photos of actors who appeared in 1970s movies and TV. It's REALLY clear that's no longer "current day" or "modern." Like films, books "age" better when you don't use references that tie you too closely to a single time (historicals excepted, but then most of your settings will be fictitious anyway).

  2. Laura, you can say your character ate Oreos so long as you don't say anything that would harm the brand like, your character died from poisoned Oreos. Susan, I love when you post here. Not only is it important to understand the legal side of our business, but I just think it's all so interesting. 🙂

    1. Nicely - and accurately - explained, Kitty! That's exactly the rule with trademarks. The only exception is for trademarks like Little League, where the company actually does pursue people who use them in fiction without a license. Sometimes they win, sometimes not - but the cost of the litigation itself is overwhelming for most people. Unless you know whether the trademark you're using fits into that category, sometimes it's best to create your own. (Most of the food companies actually like that kind of product placement, however, as long as the placement is entirely positive.)

      I'm glad to hear you like the posts, too! I love writing them.

  3. Thank you, Susan. I have a somewhat related question about this: "If you copy anything from Hogwarts (aside from the “basic building blocks”..." I think I understand what you mean but want to verify. It's kind of a moot point because it's mostly for their own enjoyment but here's the situation.

    My two kids are writing a story centered in the "Harry Potter" world, however another school like Durmstrang and Beaux Batons, their's is set in America. Very little would cross over with the exception of how the magic works, certain terms, like Muggles, etc. From that standpoint it seems like they would be fine. My question though is this, if they make a mention of an event in the real books, like, "Did you hear what happened to Cedric and Harry at the TriWizard Tournament?" or something like that. Is that traveling too close to infringement?

    My apologies if this deviates too far from your topic. And thank you. - Linda

    1. This is a really good question, Linda.

      The good news is that copyright infringement requires "publishing" - so anything your children (or you) write for their own enjoyment isn't infringing. Under copyright law, "Publishing" means distribution to someone other than the creator (within the creator's own household wouldn't count, so your children can make copies for themselves, grandma, etc - as long as they never end up on the Internet), whether or not it's published professionally or for money doesn't matter.

      The bad news is that anything set in the Harry Potter world is considered a "Derivative Work" of J.K. Rowling's works - because she created that world - and therefore it is copyright infringement if it's published, because the original creator "owns" the exclusive right to make or license (or refuse to permit) derivative works. That's one reason you don't see books by other authors set in her worlds (or other worlds - unless they're licensed). The reason for this is that the original author has the right to create the "canon" - all the things in her world - and if someone else writes in that world, they're impacting her canon, her world, and her right to write new things within it.

      In other words: your children can (and should!) write whatever they want to for themselves (and for your family) to enjoy. Children often learn to write by writing in worlds they know - it's easier than expecting a child to create a world of his or her own. That said, they can't publish that work -- even on a blog -- without infringing copyright, if they're using someone else's world. Is it likely that you or they would get in trouble? Hard to say. As a parent, I say encourage their writing. As a lawyer, I have to tell you that you have to encourage it within the family, and not for publication.

      Hope that helps!

  4. Thanks Susan once again for a learning opportunity. Another copyright oriented topic that I'd love to see covered is that of using the names of real people (like current celebrities) in fiction or real organizations. Though your example of using Little League proves it's probably best to make up an organization rather than use a real one.
    After reading about the Scarlett Johansson lawsuit I figured it was best to just make-up some "celebrity chefs" for my novel, since I wanted them to interact with the characters.

    1. Great question, Cerissa - and you're on the right track with making up your celebrity chefs.

      The short answer is that living people (and deceased people, to a certain extent) have legally-recognized privacy rights in their names and images that make it illegal to use a person's name, likeness, or image without their consent - even in Fiction. Bette Midler even sued a car company for getting an impersonator to sing "Do You Wanna Dance" for their car commercial -- because she refused to do it herself (she doesn't do commercials), and she claimed people would think the voice was hers. She lost that suit, but only because Ford never actually said it *was* Bette Midler. Had they used her name or likeness, she would have won, and the damages would have been enormous.

      You can't use a real, living person as a character in your novels without their consent. You can make a reference to historical events - for example, to a State of the Union address - and you can name the President who gave it, and even quote things that he actually said, because that's a historical fact. What you can't do is fictionalize your own State of the Union using a real, living President and put words in his mouth.

      If you're using celebrity chefs in a novel, I'd recommend making up your own - and even possibly creating a fictitious "Cooks' Network" for them to appear on (you can use that name if you want to). It gives you much more freedom and won't make your work seem dated after folks like Bobby Flay have retired. In addition, you save yourself the embarrassment of making a real celebrity look good, and then have that person do something really stupid, illegal or embarrassing, get disgraced - and still remain a wonderful person in your book. (And if you know your celebrity chefs, you probably know who I'm referring to between those lines.)

  5. Awesome. That is a well organized explanation. Thanks.

    My question involves copying setting descriptions into your own work. If an author copy-pastes extensive descriptions of real places from other published works such as newspaper or magazine articles, is this copyright infringement?

  6. Great post, Susan! Since I write historicals I don't run into too much product or brand organization conflicts, though it does remind me of a precaution I do take - I don't use real historical people (like Mark Twain) or organizations (like Freemasons) in a negative way, such as making them a murderer. I worry that a descendant would get upset and sue me.

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