Using Published Characters

[Addison]

I'm hitting a little conundrum with my newest WIP.

In this story my protagonists, Alex and Maxi, stumble upon an underground lab where scientists are using a portal and devices to take Disney characters out of their world. Beast, the three good fairies, the whale from Pinocchio. The plot revolves around the characters finding and protecting the characters from the scientists and getting them back into their world. So the characters names and characteristics will be used, but not the stories, it won't be plagiarism entirely. But I want to make sure I don't break any laws by using the character names and such.

Does anyone know what to do or what's proper?

 

[Steerpike]

Characters do get copyright protection, and the more well-defined those characters are, the stronger the protection. The Disney versions of these characters likely have some copyright protection, and that's not just limited to images depicting the characters, so that could be an issue.

There are potential fair use arguments to be made, and if you're writing satire or parody you may strengthen your position. The main concern in this case is Disney is pretty rabid about copyright and trademark enforcement. I've dealt with their attorneys on matters relating to these issues. Even if you are right and end up winning against Disney, should they bring a claim, it would cost you a lot of money. It isn't a certain thing that Disney would even bring an action, but if the story were to sell and be successful, I suspect you'd hear from them.

Safest thing to do is make up your own fairy tale characters or use some that are wholly within the public domain. If you use characters from public domain stories that Disney has since incorporated into their own intellectual property, the safest thing to do is purge any of the Disney aspects from those characters. That said, if you did go forward with Disney's actual characters, there are always arguments you can make that your use is permissible. Whether those arguments will be successful is another issue.

 

[Addison]

Personal fairy tale characters won't work as the impact the characters have on today's kids is an important part of the story. I guess I'll have to really trim down what characters I use.

Another question, what happens if a person writes a scene in which a character is watching a Disney movie or quotes one? What kind of legal mess could that create?

 

[Steerpike]

Another question, what happens if a person writes a scene in which a character is watching a Disney movie or quotes one? What kind of legal mess could that create?

Probably not too much of one, depending on how much you quote. Making references to pop-culture or other intellectual property is permissible. Just making the reference by name isn't going to raise copyright or trademark issues as a general rule. Quoting the characters would fall under potential Fair Use. That's always a fact-specific analysis, but in general a short quote isn't going to pose much of a problem for you.

A lot of the older Disney characters come from public domain works, so you could try to walk the line between invoking enough of the characters to get the idea across, but not enough to tread on Disney intellectual property. If you have 'the little mermaid,' for example, that's well into the public domain. If you have a little mermaid named Ariel, who has red hair and a beautiful singing voice, etc., then you're likely to run into an issue.

Using Disney's original characters would be even trickier. As you might imagine, if I wrote a story featuring Elsa and Anna from Frozen, it's going to look a lot like I'm just leveraging Disney's intellectual property in an attempt to make a profit. It would be possible to do with satire or parody, though even that would draw the ire of Disney.

One thing to think about if you're going ahead is how much of your use is meant, ultimately, to make a sale because kids know the Disney characters and want to read about them. In other words, how much of your concept is meant to leverage Disney intellectual property to make a profit. The more your work falls into that category, the bigger problem you likely have.

Also, what are you going to do with the story? If you go traditional publishing, any publisher is going to be put off by heavy incorporation of Disney characters, because they know Disney probably won't license the use and they don't want to run the risk of going up against Disney. If you're self-publishing, it may never get on Disney's radar unless it is unusually successful. If it does get on their radar, the general result is a cease and desist letter, after which you remove the story and the issue ends (though they don't have to just send a cease and desist and leave it at that).

 

[Addison]

You are being very helpful SteerPike, yet at the same time you're -being honest- beating the crap out of my idea. I have it completely outlined but now my muse has run away. I sent an e-mail to Disney Studios about the laws around public domain characters and all that.

 

[Steerpike]

Sorry Addison

The main problem dealing with entities like Disney is that they're very active on this front and have a lot of money. We just had a client cave in to Warner Bros. after spending about $20K on an issue like this. The client was, in my view, in the right, and would ultimately have prevailed, but would have spent well into the hundreds of thousands of dollars doing so. Warner Bros. can afford that, my client cannot.

Still, if your muse comes back I say run with the idea. If it grips you and your passion is there, you'll create a good story and it might be easier than you think to go back later and try to tone down some of the more problematic aspects (if there are any).

 

[Addison]

First of, what exactly do you do for a living? Agent? Editor? Publisher? Entertainment Lawyer?

Secondly, how did ABC and Disney settle the sharing of "Frozen" characters? It's season 4 of "Once Upon a Time" and instead of doing the smart thing and doing a rendition of the actual Ice Queen fairy tale they tried to make one third of that rendition and throw in a rendition of a rendition of "Frozen". (I'm only watching now to see how Emma handles her powers, who the author of the story book is, and to see more baby Neal) How the heck did they pull that off?

 

[Steerpike]

ABC/Disney are the same company now, so that's not an issue for them.

I'm a patent, trademark and copyright attorney, and I've also done representation of authors and screenwriters with production companies, the Writers Guild of America, and so on. I've done a lot of intellectual property licensing over the years. From a business standpoint, these situations often come down to risk v. rewards, and part of that calculus is how litigious the company at issue is over their intellectual property. I also work as an editor, but that's a sideline.

 

[cupiscent]

Steerpike is totally right. My own background here is on the shadier side of the line - I have written a lot of fanfic! While technically illegal - it's making use of the characters and intellectual property of another entity - fanfic can often skate by as fair use, fair comment, and through other loopholes as long as you're not making any money. Once you start making money from someone else's intellectual property, you're in trouble, and lawyers are likely to come knocking.

Does your story have to be about the Disney versions of those characters? A lot of Disney movies are based on fairytales which are public domain. They own one particular delivery of Cinderella, but not the whole concept.

 

[Xitra_Blud]

Do they have to be the Disney characters? You could just use the beast, three of the 12 good fairies, and Pinocchio from the original stories. Those were written so long ago, I doubt any copyright laws still exist against them.