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So, I am in India and I am writing a novel. I was planning to add a few characters from 2 video games, Bendy from Bendy and The Ink Machine and Sans from Undertale. I am not writing fanfiction and only adding them for a bit of lore and a cameo appearance. It is not that the name is similar, but I would like to add the characters. How do I get permission from the creators on using them? I am planning to publish the book at one point.

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    I’m voting to close this question because it is about how to perform business communication, not the law or legal process.
    – Nij
    Jul 1 at 11:23
  • You ask the copyright holders. (Just to give you a preview: they are going to ignore or reject your request.)
    – Sneftel
    Jul 1 at 11:30
  • @Sneftel But who are the copyright holders, both the games are indie and how do I communicate with them. Do I mail them or something?
    – Aster17
    Jul 1 at 11:58
  • The copyright holders are, well, whoever the copyright holders are; generally the original studio, but sometimes the publisher. There is no special method you are required to use to contact them.
    – Sneftel
    Jul 1 at 12:40
  • @Aster17 Yes, you email them and ask permission. It's literally that simple. The hard part is getting Toby Fox to even acknowledge some random kid writing fanfiction when he's busy with Delta Rune.
    – Unfair-Ban
    Jul 1 at 13:57
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Two Paths

There are two basic paths that a person might follow in attempting to include a cameo appearance by a character from another work whose copyright s/he does not own.

  1. Request and obtain permission from the copyright holder.
  2. Claim that an exception to copyright applies.

Permission

The first path is simple, but may prove futile. If the copyright holder can be found (which is often easy, although sometimes very hard) one communicates with the holder, requesting permission to use the character. The holder may or may not respond. No response must be taken as a denial of permission. Te holder may ask questions about the nature of the use. The holder may require payment of a fee. The holder may attach any conditions s/he pleases to the permission. The holder may require a contract to be signed. The holder is under no obligation to respond at all, or to make any particular response.

Communication may be attempted by any method, including email, postal mail, or telephone, for which the holder's contact info is available. If the holder grants permission it would be a good idea to get that in writing, and dated. An email would accomplish that, as would a letter from the holder.

Exception to Copyright -- in General

The second path means making a somewhat complex legal assessment. The law of copyright exceptions varies significantly by country. Whether a given use fits the exceptions in the law of any particular country is a highly fact-based assessment, and cannot be determined without knowing the details of the use, and matching those against the law and court decisions in that country. Obtaining legal advice is often wise in evaluating such a situation.

In addition, if a work is published so as to be available in multiple countries (as would be the case for a work distributed over the internet) a copyright holder might sue in any one of those countries. In such a case, the relevant law would be that of the country where suit is brought, although that country must have some jurisdiction over the publisher or creator of an allegedly infringing work to enforce a judgement against that person. This the exceptions to copyright available would be those of the country where suit is brought.

The article "Fair Use: Comparing US and Indian Copyright Law" from Jurist compares exceptions proceeded in the two systems. It does not, however discuss this specific situation.

Exception to Copyright -- United States

In the the primary exception to copyright is fair use which is codified at 17 USC 107. This establishes four factors to be considered. These have been discussed im several threads here on law.se, including Is licensing required to use an excerpt of a song within a recording? fairly recently. Here I will say only that there is a long tradition of permitting literary references, and a cameo appearance of a character that is not central to the plot of a new work, and does not harm the market for the source work is quite likely to be held to be fair use under US law. However, that will only matter in a US court, as fair use is a very specifically US legal concept.

Exception to Copyright -- India

In copyright is governed by the Copyright Act of 1957, as amended. This covers exceptions to copyright in section 52, which has many subsections covering various specific situations.

Section 52(a) provides that one exception is:

(a) a fair dealing with any work, not being a computer programme, for the purposes of—
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.

None of the other subsections of section 52, from (aa) thru (zc), seem to be applicable to the situation in the question. I am not sure how the case law of India has applied 52 (a) or has dealt with the tradition of literary references. A quick search did not find any relevant cases, which probably is a problem with the search. None of the specific purposes listed in 52(a) seem to apply to the situation described in the question.

It might be a very good idea to seek advice from a lawyer familiar specifically with copyright law in India, and with how "fair dealing" is interpreted there.

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  • Hi, your answer is actually great. But the thing is, BATIM has made a site discussing where their IP or Brands could be used and where they can't be. Please let me know if I could come under this or not. Here's the link: joeydrewstudios.com/fancontentpolicy
    – Aster17
    Jul 2 at 2:46
  • @Aster17 that site does not discuss a situation quite like the one described in the question. Moreover, it claims some things to which the IP owners are not allowed under US law. But it does, in section 10, specifically prohibit "commercial use" of any of their "Brads" which they say include all of their character names. Publishing a novel would seem to be commercial use. [...] Jul 2 at 15:05
  • @Aster17 [...] Note: this 'FAN CONTENT POLICY" while it mentions "fan fiction", seems much more focused on music, artwork, and games. It does not at all mention works that are not fan fiction but include brief mentions of or appearances of their characters. They might still authorize such. I still think that under US law permission would not be needed for use as described in the question. The law of India is not as clear on that. I don't think the policy as written authorizes a published novel using any of their characters. Jul 2 at 15:09
  • So what should I do? Should I only use their aliases, which are not technically their names? Would that work out? I would be obscuring it a bit with windings if it is useful, which I doubt it is.
    – Aster17
    Jul 2 at 15:25
  • @Aster17 I am sorry but "what should i do?" is a request for specific legal advice, which we can't and won't provide via this site. You could ask the IP owners for specific permission, which they might or might not grant. You could just go ahead, claiming that permission is not legally required. You could muse new names for the characters. You could drop the cameos from the novel. If you go ahead, with or without new names, you may well wish to consult a lawyer who knows the law of India on copyright and trademark. I can't advise which choice to make. Jul 2 at 15:32
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You are drastically overcomplicating this. There is no complicated legal ritual involving lawyers and reams of very specific paperwork. You need the owner of the copyright to say it's ok. That's literally it.

Most copyright holders make their identity and in some cases contact details easy to find. Finding that Toby Fox owns the copyright of Undertale was trivial. The contact details took a little more googling, largely because the Undertale site was down.

The hard part is getting a well known creator to even acknowledge, much less deal with, some random kid but that's not a legal question.

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  • I doubt OP even needs permission. This sounds more like a fair-use/fair-dealing situation than a licensing issue.
    – bdb484
    Jul 1 at 15:28
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    @bdb484 I don't want to get into any trouble, to be honest, and just want to play safe. BATIM has given permission to use their characters' names after disclosing that whatever material it is present is not related to BATIM or joey drew studios. It's only Undertale that will be a challenge.
    – Aster17
    Jul 1 at 15:33
  • @bdb484 If you want to post that as an answer, post it as an answer. Please explain how this could be considered fair use in your answer. Or do you mean this is just the kind of situation where the copyright holder wouldn't get involved (which is probably the case but not what OP asked).
    – Unfair-Ban
    Jul 1 at 15:37
  • I don't want to post it as an answer, just a comment. There aren't enough facts to run a serious fair-use analysis, but from what I'm hearing, that's my instinct.
    – bdb484
    Jul 1 at 17:39
  • Eh. Downvotes don't really bother me as much as low-quality answers. There's potential for the fair-use analysis to go either way, and I'm comfortable with you disagreeing. If it makes you feel better, I don't mind if you downvote some other answer of mine instead. Maybe this one: law.stackexchange.com/questions/29773/…
    – bdb484
    Jul 1 at 19:16

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