Rabbit Redone?
July 31, 2011 5:44 PM   Subscribe

Copyright question: Can I publish "Portnoy's Little Brother"?

What's the legality of writing an unauthorized "sequel" to a copyright-protected work of fiction -- a "sequel" that features some of the characters in the original?

Please, no answers beginning "I would think ... "
posted by SallyHitMeOntheHead to Writing & Language (20 answers total) 2 users marked this as a favorite
 
Copyright law in the States is pretty messy, but seems to be coming down on the side of this not being okay.
posted by Paragon at 5:48 PM on July 31, 2011 [1 favorite]


I would think that this link would be helpful for you.
posted by tomswift at 5:48 PM on July 31, 2011 [1 favorite]


What you're talking about is called a "derivative work", and the original copyright holder has all rights to derivative works.
posted by Chocolate Pickle at 5:49 PM on July 31, 2011


If it's satire, maybe. If it's a direct sequel, not without permission. Either way, consult a copyright lawyer.
posted by Bunny Ultramod at 5:49 PM on July 31, 2011


That's a good point. "Bored of the Rings" didn't require permission from Tokien's estate.
posted by Chocolate Pickle at 5:52 PM on July 31, 2011


Hey, it sounds like you want to write fanfiction!

IANAL, so you will want to consult one if you're considering making this a commercial venture. You could potentially land into a lot of trouble.

The Wind Done Gone is another example of a derivative work that might support the "not okay" opinion. In the opinion of many people, it should have been completely legal, as it was a criticism of the original work, but that did not protect its author and publisher from being sued by Margaret Mitchell's estate. They settled, so we don't know what would have happened if the case had proceeded.

It's not as simple as it being okay to write a sequel or not, because cases will be decided on their individual merits. The Wind Done Gone was parody, but was it parodic enough?

In fandom, as a point of interest, this is an ongoing topic of discussion. One thing that almost all fans agree on is not to sell derivative works of things still in copyright for profit, as that will attract the negative attention of copyright holders, and profits will be a component of the damages if you are sued and the rights holder wins (or you settle). Fans who attempt to sell their derivative works are often ostracized.

As far as I know no one has been sued for non-commercial publishing of a derivative work. It's simply not worth the rights' holders time, to start with. Some rights holders have forbidden such publishing, and fan authors have backed down by either taking their works down or going more underground; no one wants to be the test case.

What you're talking about is called a "derivative work", and the original copyright holder has all rights to derivative works.

I don't believe that this is true, but I'm willing to be shown wrong. Can you point to what makes you think this?

I've always understood that the creator of the derivative work has the copyright to the original aspects of the work, even if other parts are infringing. The Wikipedia page is pretty dense, but I get the same impression from it. In addition, there are pretty infamous (within fandom) cases like this one, where the author of the original work was exposed to potential legal trouble after viewing a fan's derivative work. It's "common knowledge" in fandom that this is one of the reasons it's not cool to send your fanfiction to the original authors unsolicited.
posted by Kutsuwamushi at 6:52 PM on July 31, 2011 [2 favorites]


I don't believe that this is true, but I'm willing to be shown wrong. Can you point to what makes you think this?

US Copyright Bureau (PDF):
Only the owner of copyright in a work has the right to prepare,
or to authorize someone else to create, a new version
of that work.
They use the terms "derivative work" and "new version" interchangeably.
posted by Chocolate Pickle at 7:41 PM on July 31, 2011 [1 favorite]


Just to clarify: the creator of a derivative work owns copyright to all new material in that work. He does not own copyright to any of the derived material. And if he prepares the derivative work without getting permission from the original copyright owner, he can be sued.
posted by Chocolate Pickle at 7:43 PM on July 31, 2011


Well, someone wrote Ahab's Wife, so.....
posted by spicynuts at 12:38 AM on August 1, 2011


Someone also wrote about called Finn, which is about Huck Finn's father and includes characters from Twain's novel. I think there's a lot of precedent for this.
posted by spicynuts at 12:38 AM on August 1, 2011


An important difference is that Mobey Dick and Huck Finn are old enough to be in the public domain, while Portnoy's Complaint, Catcher in the Rye, Lord of the Rings, and Gone with the Wind are still under copyright (at least in the US).
posted by JiBB at 12:48 AM on August 1, 2011


Good point, sorry.
posted by spicynuts at 2:16 AM on August 1, 2011


OP here. Very illuminating discussion. I haven't spelled out the book I'm considering, so as not to give away a good idea. But here's a similar idea: "Chasing Holden."

A book about a young man devoting time and energy to finding Holden Caulfield.

Holden himself isn't a main character -- an elderly Holden appears only at the very end, if at all. The young searcher might seek out other 'Catcher' characters or their relatives; he might ponder the meaning of certain 'Catcher' events, seeking clues. And he wouldn't be able to find Holden easily but would chase a few false leads before homing in.

Does that change any opinions above?

(also: special thx to tomswift & his 'i would think' link.)
posted by LonnieK at 4:28 AM on August 1, 2011


No one has mentioned this: A call to Phillip Roth to ask his OK for the project. He might say yes.
posted by megatherium at 5:22 AM on August 1, 2011


OP, that doesn't change anything. Thiis is not like "fair use" where a low enough percentage gets you off the hook. Either it's infringing or it isn't, and it sounds like it would be.
posted by Chocolate Pickle at 5:32 AM on August 1, 2011




Just to clarify: the creator of a derivative work owns copyright to all new material in that work. He does not own copyright to any of the derived material. And if he prepares the derivative work without getting permission from the original copyright owner, he can be sued.

That was the issue. When you said that the copyright owner has all rights to derivative works, that seemed to include all rights, including copyright over all aspects of the new work.
posted by Kutsuwamushi at 6:06 PM on August 1, 2011


OP again. Thanks Hive. Not the answers I wanted, but perhaps the ones I need.

Still, let's split some heirs. What if in 'Chasing Holden,' old Holden himself appeared only on the last page? Or almost appeared -- but didn't?

Let's say 'Chasing Holden' is really about the kid doing the chasing, not an old HC. (Altho the skilled fictionalist could make it really about HC without HC showing up at all, but only in the mind of the kid ...

Anyway, thx all again. One ought not invest months in a doomed project.

I gotta note megatherium's suggestion. May as well ask the author -- who could say 1) No; 2) Yes; or 3) What's the business model? I could handle 2 of those.





-- not HC. Or rather, AND HC. (That's what writers do, isn't it?) . I really want to write this book, and I may have to give it up, but I don't want to give it up lightly.
posted by SallyHitMeOntheHead at 6:06 PM on August 1, 2011


* sorry, neglected to delete ramblings at end.
posted by SallyHitMeOntheHead at 6:09 PM on August 1, 2011


As as been mentioned before, you can't just say "this would be infringing" and "this would not be infringing" based on a short description, at least not regarding things that might be borderline. If you were to be sued--which, remember, does not mean that the person suing you is in the right--there would be a pretty thorough consideration of the content of your book, not just a decision based on "HC doesn't show up until the last page."

No one here can give you a guideline to making your book okay.

If you want to do this, and it's important to you, you really should consult with someone who is well-versed in copyright law in your jurisdiction and who knows a lot about the precedent set in cases similar-ish to yours.
posted by Kutsuwamushi at 11:55 AM on August 2, 2011 [1 favorite]


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