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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Susan 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).
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