Please note that I am not a lawyer, and this is not legal advice. There is a lot of great information about copyright on the internet, but none of it is legal advice. To get legal advice, you pay a lawyer licensed to practice in your state or country.
Can you reference another author’s characters in your novel?
As with so many questions in publishing, it depends.
If this is something you’re considering, here are some questions to ask.
Is the novel out of copyright?
If the novel is out of copyright, then it’s likely you can use the characters. That’s how we have so many versions of Jane Austen novels (Pride and Prejudice and Zombies, anyone?). But keep reading, because it might not be.
Are you planning to sell the book?
If you’re writing purely for enjoyment and not making your work available for sale, then it may be classified as fan fiction. Many authors are perfectly happy for their characters to be used in fan fiction … but some are not, such as Anne Rice. JK Rowling doesn’t mind as long as there is no sex.
Do you have the author’s permission?
If the novel is still under copyright and you want to include the character (or the character’s name), then my advice would be to ask permission from the author or rights holder. The author may take it as a compliment and happily give permission, or they may decline your request.
Is there a valid trademark on the character name?
Some characters are so unique that their names are protected by trademark to ensure that no other author writes and sells novels using that character. If the character is trademarked, you can’t use that character without permission.
This particularly applies to characters where the book has been adapted into a film. In such cases, the name may well have been trademarked by the production company, if not by the author.
Is the character covered by copyright?
If the character is distinctive enough that they are subject to copyright in their own right (e.g. Jack Ryan or James Bond), then you can’t use that character without permission. If the character has appeared in a movie or TV series, you almost certainly can’t use that character without the permission of both the author and the production company.
So when can you use another author’s character?
When you have written permission from the copyright holder.
If the author has given you written permission for using their character, then you are fine.
Otherwise, don’t.
What if I accidentally use the same character name?
That’s going to depend on how common the character’s name is, and whether your character is clearly a different character. The legal issue here is “passing off”. Could an average reader mistakenly think they’ve bought an all-new James Bond novel featuring the famous 007 agent? If so, you’ve got a problem.
(An ornithologist named James Bond in your novel set in the Caribbean in the 1950s is unlikely to cause problems. A spy named James Bond will.)
Perhaps Google your main character’s name while you’re still in draft stage. Then you’ve got time to change your character’s name if you’ve unconsciously chosen one that is too close to a previous (and more famous) character … or real-life person.
But Why?
My question as a reader is why would you use another author’s character? I have occasionally read novels where a character from another writer in the genre is mentioned. I find it a little odd, especially if it’s not made clear the character has been “borrowed” e.g. by thanking the other author in the author’s notes at the end.
Using an existing name implies a connection between the two books and authors, and that breaks the suspension of disbelief necessary for great fiction.
