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CASE STUDY: We Go to the Gallery (23:06)

When Michael Johnston published Brideshead Regained, James Gill, who represents the Evelyn Waugh estate, said ‘You cannot just wander into someone else’s property and take their characters.’ Surprisingly, however, you often can. Characters are not protected under English law; copyright protects the words and form in which ideas are expressed, not the ideas or characters themselves.

The type of copying traditionally envisaged by the law – taking chunks of original text – is not what happens when someone lifts a famous character’s name or catchphrase for their own book: or even does a new comic strip. Most sequels and fan fiction (‘fanfics’) take original characters and create new situations for them. Someone could only claim copyright infringement only if the original words or settings, plot-lines, pictures and character development were used. English courts have several times refused to uphold copyright in the character of Sherlock Holmes and Dr Watson due to the lack of recognition of such a concept in English law. 

Obviously if a character is illustrated then it may be easier to protect; English law recognises the principle that a picture is worth a thousand words. However, the copyright is in each individual drawing, not the style or the impression made up of all of them.

So is there a formula as to how much I can use of someone’s work before it is copyright infringement?

For infringement to be proved, you have to have used ‘a substantial part’. If original words, drawings, settings, plot-lines and character development have been used, then the owner may be able to claim copyright infringement. ‘Substantial part’ is hard to define but judges start from the position that ‘what is worth copying is worth protecting’.

A similar battle was fought over Lo’s Diary, a novel retelling Vladimir Nabokov’s Lolita from the young girl’s point of view. That dispute ended with an agreement to share royalties. However, most sequels and fanfics only take original characters and create new situations for them. That won’t usually be infringement. Whether a picture is an infringement is a question of fact in each case.