Updated: Nov 17, 2020
Navigating the legal landscape of self-publishing is something I, too, have found myself giving attention to both as an author and as an attorney.
As a romance author, I rarely give attention to the fact that I am also a legal eagle. So, imagine my dismay when I discovered that a proofreader, I hired who unbeknownst to me was also an author, had hijacked my fictional character’s name in the work I hired her to proofread.
It wasn’t until I discovered that she had published her own work ahead of mine, that she had copied my character’s full name for her own character in another genre. What are the odds of that? For the record, I am not one to believe in coincidences.
Fictional characters that we as authors create can have monetary value, especially if we pursue characters for the purpose of a novel series or merchandising (book swag, ya’ll.) Thus, my need to maintain control and protection of the fictional character's name takes on increased significance as author and creator.
Smartly, I did own the registered copyright for the underlying work. But generally, character names are difficult to copyright. Courts have typically ruled that a fictional character incorporated into a copyrighted work is not entitled to copyright protection unless the character is specifically described and fully developed.
This is unlike graphic characters which often receive a higher level of copyright protection because fictional characters that are not represented by a physical image, reside more in the reader’s imagination and cannot be easily compared. Overcoming the obstacle of copyright infringement can be difficult to achieve. Unless an infringer flagrantly misappropriates a fictional character’s name and characteristics, the subjective nature makes it difficult to be afforded legal protection.
Fictional characters can be protected separately from underlying works based on a legal theory of derivative copyright wherein the creator must prove characters are sufficiently unique and distinct (think James Bond or Superman) to merit protection. A superhero wearing a cape running around town can be generic. But a detailed expression of a superhero posing as a newspaper reporter in love with a woman named Lois Lane can be considered sufficiently unique. Thus, copyright protection of a fictional character can prove to be complex.
Whatever the case, protect your fictional characters by:
Copyrighting and registering the underlying work; and
Trademark/register character’s that have been fully developed or have unique verbal expression; and
Copyright and trademark graphic representations of fictional characters.
And lastly, for those authors who wade in the waters with side hustles of editing/proofing, be kind to your fellow authors by preserving their work and operating with integrity.
For more on Copyright & Trademark Registration, click HERE.
Jude E. McNamara
Writer of five romance novels published by Two Judes Publishing
Principal Attorney at Law Offices of Judy M. Young, LLC.
Author of Chasing Winter, Milk Money, Sugar Mommy on Top, Black Sequinned Bows and Champagne Nights, and Wingman
Typically found exercising her bread-making skills throughout quarantine