Before trying to answer that (somewhat surprisingly complicated) question, let me introduce you to one of my guests. Jack Ryan is known to millions of readers as a tough former Second Lieutenant in the Marines, a onetime CIA agent, and ultimately President of the United States. He appeared as a character in Tom Clancy's first novel, The Hunt for Red October, which was published in hardcover in October 1984 by the U.S. Naval Institute Press, a small publisher that was then primarily issuing works on naval history. Ryan later reappeared in many other Clancy novels. But did you know that Jack Ryan was the subject of allegedly infringing use by none other than . . . Tom Clancy?
Clancy was a true unknown when he wrote Hunt for Red October -- an insurance agent who daydreamed of becoming a novelist. The New York Times tells the back story here. Prior to Red October, Clancy had published no fiction, but he had published a non-fiction article on the MX missile in the Naval Institute's Proceedings magazine. So when he completed Red October he offered the novel to the Naval Institute; its headquarters were, after all, just a few miles away from his home near Annapolis.
The Naval Institute had published a few previous novels on naval themes and offered Clancy its standard contract, which included an assignment of the copyright to the publisher -- not uncommon for academic books at the time, but rare for novels. Clancy happily signed the agreement and received a $5,000 advance. Red October surprised both author and publisher when it turned out to be a colossal bestseller, selling many millions of copies (after Ronald Reagan praised it as "the perfect yarn").
For his second book, Clancy jumped ship and signed with a big New York publisher. But the earlier copyright assignment to the Naval Institute almost torpedoed the new book. Why? Because the copyright assignment arguably carried with it the rights to the characters in Red October. The Naval Institute commenced an arbitration claiming that, as the Times explained, the Naval Institute's copyright ownership in Red October gave it "a continuing interest in the Jack Ryan character, and it should therefore receive a percentage of the profits from Patriot Games and The Cardinal of the Kremlin and from any films or miniseries made of them."
The Red October arbitration was settled on undisclosed terms. But the point is that fully drawn literary characters are generally subject to copyright protection, and the copyright owner will often be able to prevent others from using the character in other works without permission. But the legal principles are by no means simple.
There are two separate but related questions here. First: Is a particular character protected by copyright? Second: Is the particular use made by someone other than the copyright owner infringing?
Here is what famed judge Learned Hand said 80 years ago in Nichols v. Universal Pictures Corp. about distinguishing between literary characters that are and are not protected by copyright:
If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s ‘ideas’ in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.Judge Hand's analysis still holds true today. As copyright guru Paul Goldstein puts it:
Fully realized characters in literature are little different from fully defined personalities in daily life, and it is no surprise that the test of protectibility that courts apply to literary characters is closely akin to the criterion that individuals apply in daily life to determine whether they in truth know someone. A literary character can be said to have a distinctive personality, and thus to be protectible, when it has been delineated to the point at which its behavior is relatively predictable so that, when placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising.Every reader of Catcher in the Rye comes away with the feeling that she knows Holden Caulfield, and so it was unsurprising to many copyright lawyers when, a little over a year ago, a court enjoined publication an unauthorized sequel by Fredrick Colting that told the story of a 76-year-old Holden Caulfield. Here is the appeals court decision in that procedurally complicated case, which ended in a settlement prohibiting further publication in the United States and Canada. Holden Caulfield is, in Goldstein's phrase, "fully delineated," and like other fully delineated characters (e.g., James Bond, as the court ruled in this lawsuit) he is surely protected by copyright, while, by contrast, sketchily defined, stock characters may not be (as the court found in this case). (See also this account of a 1998 lawsuit to block publication of Lo's Diary "a distaff version of Nabokov's Lolita.")
But the fact that a character is copyright protected does not necessarily mean that every use of his/her fictional persona is an infringement. A second work that invokes a copyright-protected character must copy some significant amount of expression in order to be an infringement. The mere mention of the name of a copyrighted character ought not to be a copyright infringement because names, standing alone, are not copyrightable. (But see the discussion of trademark and unfair competition law below.) A copyright infringement occurs only when a quantum of protectible expression has been copied, and the copying is not excused by the doctrine of fair use. (Note that this post deals primarily with openly acknowledged use of another writer's character, not the situation where an author merely borrows certain traits or characteristics from a character.)
With this principle in mind, it would seem to follow that a fleeting appearance of another writer's fictional character as a dinner guest in my novel should not qualify as a copyright infringement. However, as soon as I start to make Jack Ryan or Don Draper talk like, act like, or look like Jack Ryan or Don Draper in my novel I may be treading on thinner ice. And if I make Jack Ryan or Don Draper an important character in my book, I'm begging for trouble.
There are several other important considerations here. First, there are some copyright owners who, regardless of viability of their claims, will not hesitate to sue me at the drop of a hat if I use their characters in any way without obtaining permission (which they will never give me). There is, in other words, a practical risk in inviting other writers' characters to my fictional dinner party, even if those characters keep their mouths shut and do nothing. Frankly, it may not be worth it to me to take any risk of provoking a lawsuit arising from my imaginary soiree, even if I have the better part of the argument on copyright. It's always safer to invite some nameless characters of my own creation.
(And Elizabeth Bennett can still attend the dinner, since she has been in the public domain for a long, long time. Seth Grahame Smith, author of Pride and Prejudice and Zombies, is surely thankful for that.)
Second, the owner of the rights in a famous fictional character will also likely seek to invoke other legal theories -- particularly trademark and unfair competition laws -- when trying to protect her characters from my unauthorized use. If the name of a character has acquired secondary meaning -- i.e., if the name is sufficiently well known that readers associate it exclusively with a particular author's work -- then the owner may be able to claim that my unauthorized use of the name creates confusion among readers, who may mistakenly conclude that my use of the name is authorized, approved, or licensed by the owner. Confusion as to source, authorization, or endorsement is the essence of an unfair competition claim. There might be ways to get around the trademark infringement/unfair competition argument, particularly with the use of prominent disclaimers that make very clear that Matthew Weiner has not authorized me to mention Don Draper. But, still, the unfair competition argument is a complicating factor when referencing the characters of others.
Concern about characters as trademarks may -- or may not -- have figured into some of the choices made in The Wind Done Gone, by Alice Randall. Randall's novel was, of course, a reinterpretation of the characters and events in Gone with the Wind. Scarlet O'Hara appears in the novel, but she is referred to only as "Other." And Rhett Butler is called "R." Place names, such as Tara, were also altered. That said, Scarlett and Rhett are "fully delineated" characters whose fictional lives are continually referenced (albeit not by their full names) in Randall's novel. Small wonder then that the owner of the copyright in GWTW sued Randall's publisher, Houghton Mifflin. As you can see from the complaint, the plaintiff alleged both copyright infringement and unfair competition, claiming, among other things, that the characters were both copyright-protected and had acquired secondary meaning. It was a hard-fought case, with an inconclusive ending. The trial court found that The Wind Done Gone was likely a violation of copyright and issued a preliminary injunction. But the appeals court, in this decision, found on First Amendment grounds that it was improper to preliminarily enjoin publication of TWDG in part because Randall's work could qualify as a "parody" of GWTW. But the appeals court did not rule out the possibility that the publisher of TWDG could ultimately be liable to the copyright owner for money damages. The case settled before there was any final decision on a host of interesting legal issues.
These days, the unauthorized use of characters occurs all of the time in the context of fan fiction, which typically involves inventing new stories using familiar characters from literature, comic books, movies, or television programs. An entire subculture has built up around fan fiction, and recently FanFiction.Net was the 747th most trafficked website in the United States. Although each work must be judged on its own, suffice it to say that, if the issue ever reached a court, many works of fan fiction would be deemed derivative works that infringe upon the characters and stories on which they are based. Chilling Effects has a great Q&A on the legal issues relating to fan fiction. And the Wikipeida entry on the legality of fan fiction also makes for interesting reading. Georgetown Law School professor Rebecca Tushnet wrote an excellent law review article on the subject. And here is a list of other law review pieces discussing the legal issues.
Fan fiction writers have two things going for them. First, as discussed in some of the references above, many (but by no means all) copyright owners have turned a blind eye to infringing fan fiction, on the theory that they do not want to alienate some of their most enthusiastic followers. Second, fan fiction writers rarely seek to profit from their work, which is helpful in arguing the defense of fair use, but by no means provides immunity from an infringement claim. In short, writers of fan fiction, who publish their work on the web or elsewhere, should be aware that they are taking some degree of legal risk, unless, like Pride and Prejudice and Vampires, their works are based upon public domain sources.
So can I have Don Draper make a cameo appearance in my novel? As you can see, the answer is a thoroughly equivocal "it depends." A writer contemplating using the characters of another writer would well-advised to seek out the counsel of an experienced intellectual property lawyer. (See this prior post on free and low-cost resources.) If you're publishing with an established house, you should discuss your particular use of other writers' characters with your editor and the in-house attorney.
There are several helpful discussions on the web concerning copyright in fictional characters, including this one by Denver lawyer Lloyd Rich, this one by California lawyer Ivan Hoffman, and this by Phoenix lawyer Jasmina Zecevic Richter.