Tuesday, April 12, 2005

Recycling characters from the past

The Book Babes have an article about the use of fictional characters in modern novels, claiming that the US spring lists are 'larded with novels that appropriate famous fictional characters, not to mention a few from real life.'

Well now, let's differentiate between the two variations on the theme. Using characters from real life in a novel is one thing; using fictional characters is quite another. But in either case, caution, I would suggest, is strongly advised.

First, using real-life characters. I have done this myself, quite a bit. For example, I have written two crime novels cum thrillers under the pen-name Patrick Read.

In The Suppression of Vice, the main character is the real-life nineteenth-century poet, Algernon Swinburne. Once upon a time Swinburne was a household name, but he isn't any longer because, by and large, people don't read poetry. Many of the other characters in Vice are, or were, also real people.

In Beautiful Lady, the principal characters are my own creations, but many of the people that my heroine deals with along the way were famous in their day: the Duke and Duchess of Windsor, Joachim von Ribbentrop, and Joe Kennedy being the chief of them.

(By the way, should you wish to buy either of these books, they are available from Amazon.com as well as Amazon.co.uk.)

There are, I would suggest a number of problems connected with the use of real-life characters in a novel. In the first place, one has to be aware that real people who are still alive may not like what you say about them and may, conceivably, sue. Suing for libel is much easier in the UK than in the USA, but either way you would not want it to happen.

Dead people, on the other hand, cannot sue. And neither (as I understand it) can anyone sue on their behalf, though you have to be careful that you do not imply that villainy is passed on from father to son.

There is, however, a further problem which is best described as a problem of conscience. The dead may not be able to harass you with writs, but are you entitled to portray them as double-dyed villains, despite the fact that they can't hire a lawyer? I suggest not.

In Beautiful Lady I was painfully aware of this problem, because the real-life characters whom I have mentioned above were far from saints. Fortunately I had already planned the book as a story within a story. The novel which you eventually read is a novel which is, allegedly, written by one of the fictional characters, and the internal novelist, so to speak, justifies his approach as follows.

'Isn't it a bit unethical,' one character asks the internal novelist, 'to malign those who aren't here to defend themselves?'

The internal novelist's response is as follows: 'Malign? You think I malign them? Jesus Christ, George, you seem to have lost whatever marbles you ever had.' And he goes on to suggest that the real-life characters were, in fact, much blacker than he paints them.

In other words, my own considered practice was never to portray my real-life characters as doing anything which was any more immoral or illegal than the acts which history tells us they were certainly guilty of. So, if you should ever read Beautiful Lady, and feel that I am being, perhaps, a little harsh on some of these people, just remember that they were all far bigger sinners and crooks than I say they were. And if you think I was rude, you should see what some other writers -- both historians and novelists -- have said about them.

As for the use of fictional characters from the past in novels written in the present day -- well, the Book Babes would have us believe that this is a comparatively new trend, though they date its origins to 1966.

New or not, it does seem to have become a popular practice in the past few years, and here again I have done a bit of it myself. My novel Scrooge and the Widow of Pewsey, written under the pen-name Anne Moore, is (unsurprisingly) a continuation of the life story of Ebenezer Scrooge, who first appeared in Charles Dickens's classic A Christmas Carol. And I also wrote a stage play, Hook in Bath, which features the lovely Captain Hook from Peter Pan.

Here again, I strongly advise caution before you rush ahead and write a novel all about your favourite fictional character. The complicating factor is, of course, copyright.

I say 'of course', but in my experience many writers have only the vaguest grasp of the principles of copyright, and even less grasp of the complexities of copyright law. In England, at least, the law is far from simple.

The plain fact is that, if you want to make use of a fictional character, you had better make damn sure that the book(s) in which that character appears are out of copyright. It's no good saying airily, Oh that book was published in the nineteenth century -- it's bound to be out of copyright. Tain't that simple. Would that it were.

This is not the place to touch on all the complexities. Suffice it to say that copyright in relation to Algernon Swinburne, for example, a man whom I have already mentioned, is far from straightforward. First you have to decide/discover whether a particular poem by Algernon is in or out of copyright. And that will depend (I speak from memory rather than from an open law book) on whether the poem has ever been published, and if so when.

If you discover that a poem (or whatever) is in copyright, then you have to find out who owns the copyright. In my experience, letters of enquiry about copyright, which are sent to publishers or agents, can take up to six months, and several promptings, to elicit a reply. And, to continue using Swinburne as an example, it can turn out that no one knows the answer to your query.

At one point, about 10 years ago, when I was trying to clarify a point in relation to the Swinburne copyrights, I discovered that the publishing firm which had for years claimed ownership of the copyright, and had collected royalties on that basis, had suddenly developed doubts about the matter, based on an interpretation of the 1911 copyright act. So the situation was as clear as mud.

As it so happens, I was able, by the simple expedient of making two phone calls, to shed some light on the matter myself. But to set out the situation on paper occupied several pages.

It is also worth making the point, I think, that there is little purpose in using a fictional character unless that character is famous. And if the character is famous, and is in copyright, the copyright owners are going to want to charge you one hell of a lot of money for letting you proceed.

Some years ago I wrote a couple of TV scripts for Sheldon Reynolds, who then owned, effectively, the Conan Doyle copyright, and thus controlled the use of the character Sherlock Holmes. Reynolds had made a lot of many from licensing the use of Holmes, and at that time, 1979, the great detective was about to go out of copyright. Fortunately (for Reynolds) the UK and European laws were changed, extending the period of copyright. If you want to read all about the dog-fight for control of the Sherlock Holmes cash flow, you can find an account of it here.

The point is, of course, that some of these classic copyrights are worth not just small fortunes, but large ones. If you are the grandson, or whatever, of a famous writer from the first half of the twentieth century, you could be benefiting from tens of thousands of pounds/dollars worth of income every year. This is particularly true of those authors whose works are compulsory reading on US college Eng. Lit. courses. In some cases it's hundreds of thousands of pounds/dollars. Per year.

People who have got used to that sort of moolah rolling in, without having to lift a finger for it, are reluctant to give it up. (See, for instance, the shenanigans over public readings from the work of James Joyce.) So they employ some high-powered fancy-pants lawyers to dream up ways and means of keeping the copyright alive.

This practice is particularly popular among the big-time companies which own big names. If you want an example, read about how the Disney company spent a lot of money on 'campaign contributions' and succeeded in extending the life of their money-spinner, the lovable Mickey Mouse.

Such, it seems, are the procedures through which fair numbers of our fellow citizens earn themselves a crust.


Andrew said...

I'm puzzled at why writers would even want to, or be so lacking of ideas that they have to, borrow others' fictional characters. More perplexing to me is the entire copyright muddle, which is a train wreck here in the US, where everyone watches everyone and my cat's walk across the keyboard is copyrighted.

The end result is, with the growth of the internet, everything is "copyrighted" and nothing is safe.

Anonymous said...

What happens then if there is a TV series, which has not been recommissioned, but there is scope for further fictional exploration of the characters involved? Who owns the copyright to the characters? Is it the original scriptwriter, or the broadcaster, or production company? Or do they all have a finger in the pie?