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There is a question over at the Writing SE which was wondering whether J. K. Rowling would consent to somebody writing a Harry Potter sequel. The answer was, predictably in hindsight, "you would never be able to give her a letter, and even if, she wouldn't read it, and even if, she'd say no."

As a second best solution, could I — without her permission — write a novel that is pretty transparently set in the Harry Potter universe but simply changes a few letters around in the characters' names, so we have Parry Hotter, Waldo Bumblefloor, Salome Ginger etc.? The backstories are all the same, the rooms in the Hoglard school are the same, there are funny chasing games on brooms in the courtyard, even the pictures on the wall move.

For clarification, it would not be a satire but a serious book (well, as serious as any of JKR) that I try to earn money with. The story would be original though, just set essentially in the "same" universe.

Are there established criteria how far removed from original content a novel must be from an author who has no contract with or permission from the original author?

Perhaps one can draw a parallel to an "exposé novel" (one disclosing private details about living persons). In such a novel, things for which one would fear libel or slander charges if they were claimed about real persons are attributed to fictional characters who are transparent stand-ins for the real persons. Apparently authors get away with that. Similarly, we are by no means writing about the well-known character created by JKR, Harry Potter. No, no, no. We talk about Parry Hotter, certainly not the only wizard out there. "Mr Hilter." All similarities to invented characters are coincidental.

I'm both interested in an answer concerning the U.S. as be biggest market and probably largest readership and potential authorship both of Law SE and Harry Potter, and the UK as the home country of JKR.

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    It is my understanding that there is an extensive online community writing Harry Potter fanfic. Why aren't you doing that? Or are you doing that already, and now you would like to earn money with this as well?
    – fgysin
    Jan 20 at 6:50
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    @fgysin I'm not planning to write anything but C++ in the foreseeable future ;-). My question arouse from the linked one where somebody wonders if they could get JKR's consent for a HP sequel; because the answer to that is "most likely not" I wondered how one could do it without her consent, which is a legal question, and simply framed it in the first person, hypothetically. The difference to fan fiction which is often tolerated, not only from the HP franchise, is that the intent here is commercial. Jan 20 at 10:25
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    I would rather write Harry Potter fanfic myself than C++, but point taken :D
    – fgysin
    Jan 20 at 10:35
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    This reminds me how, in the North American localization of The Great Ace Attorney Chronicles, a character is named "Herlock Sholmes." While switching the letters seemed to have kept them from legal trouble, the obvious reference isn't the entire focus of the game, while the obvious reference of "Parry Hotter" would be the entire focus of the OP's hypothetical novel, so I'm not sure whether these two scenarios are parallel.
    – The Editor
    Jan 20 at 15:22
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    If all that is used is the name, ther will be no copyright issue. I can write a detective story today using the name "Sherlock Holmes" without any letter switching and have no copyright issue if I do not make use of the other characteristics of the character created by Conan-Doyle. That would be true even if the copyrights had not expired, as they mostly have, on those stories. Names alone are not protected by copyright. Being "the main focus" isn't what maters, it is how much of the distinctive nature of the character that was used, and how transformative it is, and other fair-use issues. Jan 20 at 17:49

4 Answers 4

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Using the setting and characters of an existing and current book would probably, indeed almost surely, make it a derivative work. Creating a derivative work from a work protected by copyright requires permission from the copyright holder, unless an exception to copyright applies.

In US law 17 USC 101 defines a derivative work as:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

and 17 USC 106 provides in pertinent part that:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ...

  1. to prepare derivative works based upon the copyrighted work;

This means that creating such a fanfic without permission would be copyright infringement, and Rowling could sue for damages.

Fair use

In the US the primary exception to copyright available is fair use. Whether a work is a fair use of another is always a case-by-case decision, and often a complex one. There have not been many published US cases on whether fanfiction is or may be fair use. This depends on the details, but from the description I do not think such a fanfic as the question describes would be likely to be held to be a case of fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? In general fanfiction has not fared very well under US copyright law. See this Wikipedia article.

A recent Law Review article on this topic, one of the few available, is The Better Angels of Our Fanfiction: The Need for True and Logical Precedent, 33 Hastings Comm. & Ent. L.J. 159](https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol33/iss2/1) by Stacey M. Lantagne.

[Footnotes in the original shown here in {braces}.] On pages 168-9 Lantagne wrote:

Although fanfiction is a flourishing medium, there has been no true case evaluating it under a fair use analysis. For instance, Warner Bros. Entertainment Inc. v. RDR Books 575 F.Supp.2d 513 (SDNY 2008) involved a work created by a fan, but the work in question was an encyclopedic reference book about the original copyrighted material, not a piece of fiction spun off from the original copyrighted work in some way. The fan work's inconsistently transformative character swayed the court's fair use analysis{The court noted that at times the fan work lapsed into mere verbatim copying of the original copyrighted material, which detracted from its transformative nature}, and the fact that it used more of the original copyrighted work than was necessary.{The court found it telling that the fan work contained a great deal of verbatim copying of "highly aesthetic expression," which tipped this factor away from a finding of fair use} These two factors would necessarily dictate a different analysis when a work of fiction is involved as opposed to a reference work.{Warner Bros., 575 F. Supp. 2d at 544. The court found troubling the excessive copying of "distinctive original language from the Harry Potter works," using "Rowling's original expression," in the work's entries. Id. Presumably, much less direct copying of original language would happen in a work of fiction. A similar implication occurs when considering the "verbatim copying" of whole sentences from the Harry Potter books. Id. at 547. Works of fanfiction seldom copy verbatim language, focusing on characters, settings, and plots.}

Lantagne next discussed mthe case of Salinger v. Colting, 607 F.3d 68, 70. That case dealt with a novel called 60 Years Later: Coming Through the Rye, whose protagonist, "Mr. C", is a 76-year-old Holden Caulfield, (the protagonist of the J.D. Salinger novel The Catcher in the Rye. Lantagne wrote:

The defendant's novel embodies typical fanfiction activity: taking a recognizable character and re-imagining them at a different stage of life." The court determined that the work was not permissible fair use and enjoined its publication.{This case [on appeal] recently settled, with Colting agreeing not to publish the book in the United States or Canada until the copyright on The Catcher in the Rye expires, but being able to publish it in other international territories, as long as it was not marketed using reference to Salinger, The Catcher in the Rye, or the litigation between the parties.} First, the court concluded that 60 Years Later was not a parody because it "contain[ed] no reasonably discernible rejoinder or specific criticism of any character or theme of Catcher. Rather than commenting on Holden Caulfield as a character, the purpose of 60 Years Later was to "satisfy Holden's fans' passion" for his character.

The insertion of J.D. Salinger as a character in 60 Years Later was possibly, the court conceded, a criticism and commentary of Salinger, but not of The Catcher in the Rye. While the court admitted that there was some transformative element in the Salinger character in 60 Years Later, it was limited by the character's minor role in a work that was largely not transformative. The court concluded that merely aging the main character of a novel and altering the novel's setting was not sufficient to make the use transformative. Finally, because 60 Years Later was to be sold for profit, the court found that the first factor weighed against a finding of fair use.

After finding The Catcher in the Rye to be an expressive work, which weighed the second factor against a finding of fair use, the court then concluded that 60 Years Later took much more from The Catcher in the Rye than was necessary for whatever transformative commentary it was trying to make. The court disapproved mainly of the use of the main character of The Catcher in the Rye. 60 Years Later also was similar to The Catcher in the Rye in structure, in a way that was not necessary to offer a commentary on Salinger (the only transformative purpose the court had found the work to have).

Finally, the court found that 60 Years Later harmed the potential market for any permissible The Catcher in the Rye sequels. The court found that fair use should not protect the ability to publish unauthorized sequels:

[B]ecause some artists may be further incentivized to create original works due to the availability of the right not to produce any sequels. This might be the case if, for instance, an author's artistic vision includes leaving certain portions or aspects of his character's story to the varied imaginations of his readers, or if he hopes that his readers will engage in discussion and speculation as to what happened subsequently."

Although 60 Years Later may be classified as fanfiction, the overtly commercial purpose of the work makes it an imperfect representation of the genre because most fanfiction is not-for-profit.{See Tushnet, supra note 16, at 664. A recent development in fanfiction that has led to clashes is the rise of the use of fanfiction for charitable purposes. "Fanfic auctions" in which readers bid for the services of fanfiction authors to write a story based on their specifications, with the proceeds to benefit charity, are becoming more common. See Gabaldon, supra note 7 ("Recently, a couple of people have drawn my attention to a person who's been posting on various boards about fund-raising for an uninsured friend named Stacie who has breast cancer. Her (the poster's) idea for fund-raising is to auction off a customer-written piece of fan-fic. . . ."). Fanfiction written for such a commercial purpose may change the analysis. But see Tushnet, supra note 16, at 672-73 (quoting Gene Rodenberry).} Because the court weighed the novel's commercial nature against a finding of fair use, Salinger is not an ideal fanfiction precedent

Lantagne goes on to discuss the case of Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257, 1259 (11th Cir. 2001). In that case a novel The Wind Done Gone, retelling Gone With the Wind from the PoV of the black characters, was held to be a parody as well as a sequel, to be "highly transformative", and allowable as fair use.

Sequels as Derivative Works

A sequel uses the characters and/or setting of an existing work of fiction. It often constitutes a derivative work. The more distinctive and original the setting and characters are, and the more of those distinctive characteristics that are used in the sequel, the more likely the sequel is to be treated as a derivative work.

On the matter of sequels, see the case of Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989). In that case, a Mr. Timothy Anderson prepared a sequel to the film Rocky III which he hoped would become Rocky IV. He presented it to MGM and Stallone. They eventually declined to buy it, and Anderson sued, claiming that the film Rocky IV that was made infringed his script. The district court held that Anderson's script was an infringing work not entitled to copyright protection. The court, citing Nichols v. Universal Pictures Corp.. 45 F.2d 119 (2d Cir. 1930), ruled that the characters in a copyrighted work are protected when they are "developed with enough specificity to constitute protect able expression." Holding that the Rocky III characters met this standard, the court ruled that the Anderson script was a derivative work created without permission, and thus was not entailed to any copyright protection at all. Anderson appealed, and the case was settled out of court while this appeal was in progress. Details of the settlement were not disclosed.

An unauthorized sequel to Harry Potter would probably face the same rule and reach the same result as in the Anderson case.It would depend on how much of the "distinctive" nature of JKR's characters and settings were used in the fanfic sequel.

The Ethical and Emotional Arguments against Fan Fiction

In This comment on the question user "RedSonja" writes:

I know this is Law and you are looking for legal answers. But what you are proposing is plagiarism by the back door. JKR went to a lot of trouble inventing her universe. Why should you be able to just plug in and milk someone else's cow? If you are that highly original, write your own universe.

Leaving aside the point that if the source is acknowledged it cannot be plagiarism, although it may be copyright infringement, this is essentially an ethical argument that the law should be different than it currently is. Some authors make an essentially emotional argument, saying that their works or their characters are in effect "children of the mind" and that others should not touch them without permission, whatever the law may say. Some find such arguments persuasive or powerful.. I disagree with these arguments.

Lantagne on pages 172-179 of the law review article linked above, responds to such arguments, writing [Some footnotes omitted, others in {braces}]:

Fanfiction is frequently devalued as not being "real" writing. This is closely related to the aesthetic argument. Copyright only protects creative expression.{See Eldred v. Ashcroft, 537 U.S. 186, 219 (2002)} If the fanfiction is not creative expression, then it is not copyrightable. That, however, is a different question from whether it is infringing.{See Tushnet, supra note 16, at 681 ("Fan fiction may not be copyrightable, but that does not make it an infringing use....").} It could be that the "not real writing" argument, translated into legalese, really expresses the idea that the work of fanfiction is not transformative enough.{See Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994) ("If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger."). Importantly, however, a work does not have to be transformative to be protected under fair use. See id. at 579. The fair use test is not forgiving of shortcuts.} However, this alone does not automatically make the work a copyright infringement because other fair use factors remain.

Many authors frequently describe fanfiction as being the equivalent of an affront against their relatives.{See Gabaldon, supra note 7 ("[L]et us just say that there's a difference between someone dating red-haired men, and the same someone trying to seduce my husband.... I wouldn't like people writing sex fantasies for public consumption about me or members of my family-why would I be all right with them doing it to the intimate creations of my imagination and personality?"); Someone Is Angry on the Internet, supra note 11 ("My characters are my children, I have been heard to say. I don't want people making off with them, thank you."); Hobb, supra note 7 (comparing fanfiction to PhotoShopping a family photo).} While the artistic protectiveness for one's creation is understandable, it is not a valid argument in U.S. copyright law. Artists have the right to control derivative works of their creations. If the fair use factors come out the wrong way [for the reuser], artists can prevent that use of their work. However, the purpose of copyright is not to prevent all use by others of an artistic work.{See, e.g., Campbell, 510 U.S. at 574-77 ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose ...)} It never has been. The very character of the fair use test illustrates this, as it protects most strongly those uses of an artist's creation that the artist would never permit.{See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1282-83 (11th Cir.2001) (Marcus, J., concurring) ("To the extent the Suntrust [sought to impose editorial restrictions] to preserve Gone With the Wind's reputation, or protect its story from 'taint,' however, it may not now invoke copyright to further that goal. Of course, Suntrust can choose to license its derivative however it wishes and insist that those derivatives remain free of content it deems disreputable. Suntrust may be vigilant of Gone With the Wind's public image-but it may not use copyright to shield Gone With the Wind from unwelcome comment, a policy that would extend intellectual property protection 'into the precincts of censorship,' in Pat Conroy's words.")} Arguably, the more that a fanfiction work criticizes or parodies the original work, the more that fanfiction is a fair use. Thus, the argument that fanfiction should not be permitted because it transforms the original authors' characters mirrors the argument for exactly why fanfiction should be permitted under copyright law.

...

The arguments that authors advance when they argue against copyright belong in a regime without fair use-a regime that would ignore the central purpose of U.S. copyright."' Such a conclusion is not only potentially untenable under the Constitution, but is also undesirable."' "The public's interest in free expression . . . is significant."" There is no question that courts have, throughout the history of copyright law, sought to protect that public interest. However, there is also no question that courts are inevitably swayed by value arguments. This should not be the case, but such influence is inevitable. ' Furthermore, value is a chicken-and-egg argument: Campbell did not base its decision on the popularity of music sampling, but surely the popularity informed Campbell's understanding of the critical commentary value of "Pretty Woman."

...

[T]he use of the word "fair" in "fair use" does not mean that it is fair to the author's wishes. Rather, it means that it is fair to the purposes of copyright.

None of the emotional arguments frequently raised against fanfiction support a blanket proclamation that none of it is fair use. Truthfully, much of fanfiction may very well not be fair use. However, a true test case of fanfiction, logically evaluating each factor, would be invaluable in moving the fanfiction debate past the emotions of the participants. The argument should focus not on the emotions of the author or the quality of the writing, but on the fair use factors: on the purpose, character, and possible transformative nature of the work, on the amount of the original copyrighted work used, on the nature of the original copyrighted work, and on the effect on the market of the original copyrighted work. These are the factors that best protect the advancement of the twin goals of U.S. copyright.

I agree with Lantagne here, it is often exactly those uses that a copyright owner will not want to approve that should be permitted as an exception to copyright. The limited statutory monopoly is granted in return for a contribution to the clutural fabric, and such work should therefore be available for use in further developing that fabric where it does not deprive the copyright holder of financial rewards, and where such uses in general are of public benefit. I take it thatr current US copyright law follows that goal, more or less.

Non-US Law

The rule on derivative works is also contained in the Berne Copyright Convention and the WTO's TRIPPS Agreement, and so applies in almost every country. Exceptions to copyright, however, vary widely. The concept of Fair Use is originally a purely US concept, although it has been adopted by Israel, and in part by a few other countries.

Other countries generally have more specific and narrower exceptions, but often have several different exceptions. India has some 28 different exceptions in its copyright law. Few of these seem likely to be any more favorable to a fanfiction sequel than the US concept of fair use.

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    @Peter Yes, it would. Where the original;l setting is fairly generic, a sequel thast further developed a character might be fair use. A sequel focusing on a minor character from the original, in which the orig protag appears only in a cameo might be ok. But even the reuse of a setting can be infringemetn, if the setting is distinctive and well-developed. New works in JRRT's Middle Earth are likely to infringe, for example, even with none of hjis characters being used. But the specific details will always matter. . Jan 18 at 22:12
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    @DavidSiegel: Half of all works of high fantasy are set in Middle Earth with the serial numbers filed off, or some minor variation thereof. How far does scènes à faire really go?
    – Kevin
    Jan 19 at 9:33
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    @kEVIN Speaking as an amateur literary critic, who has rad LOTS of fantasy, not as an amateur lawyer, i disagree about Middle Earth. Many superficial aspects of it have been much imitated. IMO most of the truly distinctive aspects have been missed by most imitators. But that discussion needs more than a comment, and belongs on the SF or literature stacks, if anywhere on SE. But JRRT and his estate have not chosen to sue in cases that they might well have won, starting with Terry Brooks and Shannara Jan 19 at 16:03
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    @Trish As described at some length in Suntrust Bank (The case of The Wind Done Gone) in copyright law a "parody" is something that comments on the original by reworking it, not something that uses the original to comment on something else. Even so, not all parody (so defined) is fair use in US law. Parody is a subset of fair use under US Law, and the full 4-factor fair use analysis must be done. In other countries parody is not as likely to be an exception. Jan 19 at 22:30
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    @einpoklum: Unless JK Rowling stops making any money off of this in perpetuity, i.e. never selling any book again, or any merchandise, or ... It can be argued that any derivative work shifts her fan base towards those works and away from her own future profit. It's easy to stop caring about this in principle when the copyright owner is considered to be filthy rich; but the law applies to anyone regardless of financial wealth. So imagine the same principle at play when e.g. Amazon starts making and promoting a clear derivative of a book you wrote in your spare time which gained some popularity.
    – Flater
    Jan 21 at 9:53
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You can try but don't expect it to be easy. In the Western world at least.

There is this Tanya Grotter precedent already.

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    That is a very interesting reference, thanks! Amazing that the non-Russian world has no knowledge (if I'm any yardstick) of the best-selling children's book in Russia. So I'd have to write for Russians ;-). Jan 19 at 0:49
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    There's also the whole Barry Trotter series, and lots, lots more: en.wikipedia.org/wiki/Parodies_of_Harry_Potter
    – Vicky
    Jan 20 at 9:30
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    @Vicky The question is about non-parodies though.
    – Greendrake
    Jan 20 at 10:06
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    @Vicky Nope. The authors of Tanya Grotter tried to argue that it was a parody but the court disagreed.
    – Greendrake
    Jan 20 at 11:00
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    @Greendrake Since Tanya Grotter appears to be fairly exactly the case I had in mind: If you fleshed out the answer a bit with quotes from the relevant court case(s) I would probably accept it. Jan 20 at 17:04
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Not really. In fact, there's an actual case that's almost exactly on point: Warner Bros. Entertainment Inc. v. RDR Books

In 2000, Steve Vander Ark, a librarian from Grand Rapids, Michigan, created the Harry Potter Lexicon, an online encyclopedia of the Harry Potter book series that collected and reorganized various facts from the novels into a searchable form. The Lexicon, which is non-profit, with only its operations paid for by advertising, quickly became a favorite for fans of the books, including Rowling herself, who claimed on her website that "I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter, which is embarrassing."

Ark's goal was to publish a book with the knowledge in the Lexicon. J.K. Rowling (via Warner Bros, who own the rights) sued, claiming copyright infringement. Rowling won (emphasis mine)

Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling’s novels,” Judge Robert P. Patterson Jr. of Federal District Court in Manhattan wrote in his 68-page ruling blocking publication of a Harry Potter Lexicon written by Steven Jan Vander Ark.

As such, your "Parry Hotter" novel would likely be judged legally by this standard, as it's already precedent.

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    In the RDR Books case, the Judge was significantly influenced by the large amount of direct, verbatim quotation from JKR's books, which he found to be excessive. An otherwise simialr derived work th did not do so much direct quotation might be found to be fair use. Also, the Lexicon was a reference work, not a work of fiction. As such it was less creative, and had a weaker case for fair use than a fan novel would have. So the precedent is not as strong as it might appear for a case with somewhat different facts. Fair use decisions are always highly fact based. Jan 21 at 16:27
  • @DavidSiegel: I seem to recall at least one exchange between JKR and her lawyer in which she highlighted some close paraphrasing of a descriptive passage, and the focus was very much on the form rather than the function of the prose (i.e. the infringing material was not merely describing a scene from one of her books, but it was specifically reusing the same visual metaphors that she had used in the original text). I tend to imagine that also hurt the fan author greatly.
    – Kevin
    Jan 21 at 21:00
  • @Kevin, ues it probably did. excessive diet quotes or reuse of specific creative expression such as a visual ,metaphor would usually harm the case for fair use, that is one of the details that may show up in a court decision. Jan 21 at 22:10
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Since you've also asked about UK law, I thought I'd cover some interesting direct contrasts to some of the US law concepts covered by @DavidSiegel's answer.

The copyright considerations are much less straightforward, though even if successful in defending against a copyright claim, I do think this would fail on trademark concerns.

Adaptation

Much like the closed list / open-ended distinction between the doctrines of UK fair dealing and US fair use respectively, the UK operates a closed list of protected adaptations in contrast to the US open ended derivatives law.

In particular, the Copyright, Designs and Patents Act 1988 s. 21(3) specifies that for literary works, only translation, conversion between dramatic & non-dramatic, and conversion to a pictoral form constitutes adaptations. In particular, simply making another novel with similarities does not infringe the UK adapatation right.

Furthermore, according to an article by Jani McCutcheon, Associate Professor Law School at The University of Western Australia:

In contrast, the equivalent adaptation right in the UK and Australia is narrow. While it controls the right to translate novels and turn them into films and plays, it doesn’t extend to same-form adaptations “based on” earlier works. Copyright owners would have to rely on the right to reproduce a “substantial part” of a work to restrain a sequel. [...] In the case of sequels, the reproduction right will only be infringed if too much of the original expression in the plot, scenes, dialogue or characters is taken.

There is no inherent "sequel right" and a copyright infringement lawsuit would therefore have to rely on infringement of the reproduction right instead.

Subject matter of copyright

In another contrast to US law, characters on their own likely do not have copyright independent from the literary works they appear in. The UK operates a closed list of what subject matters constitute a protectable work (yes, closed category lists are a theme of UK copyright law). These are found in CDPA s. 1. Literary works are protectable, but not necessarily the characters independently of them.

To further emphasize the importance of categories in UK copyright law, here's a slight tangent into a case where in my opinion, the decision would have the opposite result were it to be judged on US legal standards. In Lucasfilm Ltd. v. Ainsworth [2011] UKSC 39, the UK Supreme Court ruled that the Stormtrooper helmets from the Star Wars films were not protectable by English copyright. Essentially, the helmets were judged to serve a primarily utilitarian purpose and therefore could not constitute "sculptures" which in turn meant they were not a protectable work under CDPA s. 1.

Unfortunately, case law is much more sparse when it comes to literary works. The case law that does exist though points to the work as a whole gaining copyright, not individual facets of it like individual characters. The question would then be whether your proposed novel, by copying original elements of multiple characters and of the setting but not the plot, would constitute copying a substantial portion of the work.

The case I find most often cited to support this is Tyburn Productions Ltd v. Conan Doyle [1991] where the characters of Sherlock Holmes and Dr. Watson were apparently found to not be copyrightable. However, I cannot find this decision outside of a paywall and am reliant on avalaible commentary. I'll note that Conan Doyle v. London Mystery Magazine [1949] is also frequently cited alongside in these discussions, but keep in mind that this one is mainly a trademark case.

To summarize, I'll quote from Sherlock Holmes and the Mysteries of Copyright (Evgenia Kanellopoulou, 2014) (citations omitted):

[C]ourts in the United Kingdom traditionally do not favour the dissection of a story, in terms of conferring protection to only a section of the story. Sir Hugh Laddie, a leading academic in intellectual property and High Court judge, said in Hyperion v Warner Music that “if the copyright owner is entitled to redefine his work so as to match the size of the alleged infringement, there would never be a requirement for substantiality”. [...] Sir Laddie went on to add that “...Tarzan is not Tarzan if he was not previously raised by apes...the subject of copyright protection is the work in which the character appears and not the character itself”. For courts in the United Kingdom, all the characteristics, including the traits that make a fictional character delineated, belong to the story itself. As an effect, all issues regarding substantiality would have to be measured against the story as a whole. This would include the plot, the scenes and, of course, the characters.

Trademark

The basics of trademarks are that they are industry-specific and serve to protect against unauthorized use of mark in a manner that would likely cause confusion, especially in a commercial context. In your example of creating a new novel, clearly the relevant industry is the same (and even if it weren't, Harry Potter is such a famous mark that it would likely gain wider protections). It would then be whether your minimally altered names and how you use them could cause confusion. I would say this is probably the case, since minimal alterations are not usually enough to defend against a trademark infringement claim, but this is naturally a case-by-case factual determination.

I would, however, like to highlight one further difference between US and UK law here. While you've stated the novel will be serious and not satire, the character names you've chosen are clearly a humourous reference to the characters in Harry Potter. So while you've explicitly detailed that a parody defence against copyright infringement isn't possible, perhaps a parody defence might be available against trademark infringement. Unfortunately for this novel, parody is not a possible defence in UK trademark law, unlike the US and also unlike the recently introduced parody fair dealing defence in UK copyright.

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  • Thank you for this write-up! I find especially the direct comparison with the US law intriguing. I'm all for closed lists! Less adaptable to new circumstances but more predictable, which is what law should be all about. Thanks, especially since you say 'I am incredibly tired of and avoid the endless run-of-the-mill "Is this copying I'm doing copyright infringement' in your profile; sorry for asking another one of those. Of course everybody thinks their question is original ;-). Jan 22 at 11:57
  • @Peter-ReinstateMonica Wow, I'm surprised people occasionally read my profile! Don't worry, your question was very interesting and not straightforward; I was quite happy to provide some input.
    – DPenner1
    Jan 22 at 12:19

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