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Say someone publishes a book featuring a minor side character, with a name but without the sort of strong character trait delineation that would qualify the character for copyright protection.

Say I then write a story using a character of the same name, consistent with their portrayal in the original book, but with a bunch of my own characterization. My story is a character study of this previously uncopyrightable bit character, and I delineate them about as well as any character can be delineated.

Can I now copyright my version of this character?

Can the original author of the book I took the character from use my version of "their" character, or would they need a license from me to do so?

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    You seem confused on just what copyright covers.
    – Jon Custer
    Oct 24, 2023 at 14:31
  • @JonCuster It's certainly possible to copyright characters. James Bond, Rocky, and E.T. are all characters protected by copyright independently of the works they appear in. Oct 24, 2023 at 14:39
  • "Sufficient delineation" implies that the same character can be identified in different appearances with consistent characteristics. If the original character is indeed insufficiently delineated, I question whether the more-detailed version can even be identified as the same character. If the original author can point to your character and argue it is indeed the same character, it sort of invalidates the premise that the author's character was insufficiently delineated - there simply must be particular characteristics in common between both characters to draw the link between them. Oct 24, 2023 at 16:06
  • I'm assuming that just giving a character a name and like a job title doesn't qualify it for copyright protection. Maybe the original book has a garbage man named Steve Haroldson who is on one page and says "Morning!". My story is about a garbage man Steve Haroldson and his deep pathos as his relationship with his husband slowly grows more distant every day. I tell everyone that yes it is meant to be the same guy from that other book.
    – interfect
    Oct 24, 2023 at 17:44

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You don't "add" copyright to a work. The copyright is inherent to the creative act. Once the creative work is brought into being, the copyright (CR for brevity) already exists. This happens regardless of the published state of the work.

You own the CR of the stuff you create. However, if you use CR material from a third party, their own rights superimpose and take precedence over yours.

That's why we need fair use. Under some circumstances, this precedence does not preclude the use of the CR material.

What puts a character under the umbrella of CR is a nebulous matter. There's a split in the circuits and, as most things regarding CR, no clear-cut rule. Each case needs to be analyzed on its own merit. More about this in this Emory Law Journal paper.

Often we err on the side of caution. Perhaps the court would find that if the character in your work can be recognized as the OG character, the OG author can enforce his rights over your work.

So, yes. You own copyright over your version of the character but the OG author may enforce his own CR rights over your work. Which means they may force you to stop distributing the derivative work. It usually requires a civil lawsuit but often C&D letters and the fear of the cost of litigation are enough to bring the weaker party to agree to the claims brought before them.

A license is the other way around. The OG creator may grant you one to shield you from legal issues down the line. This shield is not absolute, though it may hold some weight in court.

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