Bdtyk

Would it be a violation of copyright and/or plagiarism to “borrow” a character from another novel?

For example, I have a short story and want to include as a side character Ender (of Ender’s Game). I would preserve Ender’s name, family, personality, etc. But Ender would only play a small part in the story.

It’s not the brightest idea, but I’m curious if it’s legal.

I am not a lawyer, but you really should not do this. Orson Scott Card (OSC) and any partners he has (publisher, movie studios) own "Ender", and you cannot profit from it in any way whatsoever. OSC and his partners are rich enough to sue you even if you don't make any money, and may even be legally obligated to sue you in order to protect their property, if your work is public in any forum. Including all the details of Ender and his family would likely be held by a court to be "substantially the same" text as what OSC wrote, So I think you would be held liable, not only for any profits you made, but extra damages as well.

The only plausible reason for you to do that is to increase the appeal of your story, and hence the financial value of your story, in the court's view by stealing the intellectual property of OSC.

Use your own imagination. Do not presume that because others writing fan-fiction are getting away with it, you can get away with it too. They may not be poking at the same bear as you would be, and in crime the excuse that other people are getting away with it all the time doesn't hold any water for defense.

The point of copyright law is primarily to protect the financial interests of the original author. If you copied long sections of "Ender's Game" into your book, to the point that a court concludes that someone might buy your book INSTEAD OF buying "Ender's Game", you would lose a copyright lawsuit. If you just copy a few snippets here and there, it would probably be considered "fair use". If you just referred to the character without copying any words from the original besides his name, that would definitely not be copyright violation, because you haven't copied anything.

It might be trademark violation, which is a whole different issue. If Mr Card or his publisher believes you are appropriating their trademark to take advantage of their good name, they could sue you for trademark violation. In this case there would presumably be little question that you are indeed deliberately copying there trademark. So the only question for a court would be whether you had done them any harm.

Regardless of the legalities, you might seriously consider what you are trying to do from a literary and artistic point of view.

Using someone else's character is generally seen as being lazy or uncreative. Readers expect you to invent your own characters.

If you just make a quick reference to someone else's character for a joke or a comparison, like "he's as strong as Superman!", you'd almost surely get away with it legally and artistically. I recall a novel I read once that had a brief section where the hero runs into a strange space-time anomaly and heroes from 3 or 4 other's people books show up. They all quickly leave and he gets back to his own characters. Personally I thought it was awkward. I suppose some readers thought it was cute. But drag that sort of thing out much and it just makes your story look like fan fiction rather than an original work.

This is de facto fan fiction, which seems to be in a legally gray area, where it's generally ignored UNLESS someone tries to profit from it. If you're including someone else's work in a profit-making venture, ethically speaking, you should get permission and/or pay them.

This probably should have been raised over on law.se, but I hang out there, and can answer. (See this question and answer from law for more on fair use.)

The literary homage in which one alludes to another work has a long tradition behind it. In some cases it could be treated as infringement, but hasn't been. However, some authors choose to exercise stricter control over their literary work, and I think OSC may be one such. So let us consider the strict legalities.

Making extensive use of an existing, well-defined character means that the work is a derivative work, and cannot be published without permission from the copyright holder on the original work. This is true even if no actual text from the original is copied. For example, writing The Further Adventures of Ender taking the character beyond the story OSC wrote would pretty clearly be copyright infringement. A simple reference would not. Having the character show up for a few paragraphs probably wouldn't be infringement. Having him as a significant presence for, say, 50 pages, almost surely would be infringement.

The more of the distinctive characteristics of the original character that are used, the more the work becomes a derivative work, and thus an infringement. There is no bright line here. Or not until a court rules one way or the other, and you don't want things to get to that point.

It doesn't really matter whether you are distributing this work for free, or it becomes a bestseller, except that the amount of damages will probably be higher if you are making money off the work, and the original author may be more likely to sue if there is money to be claimed. Well, if things are on the cusp as to whether use of the character is "fair use", that the work is done for profit will weight things towards the infringement side, but that is only one factor, and often not the most important. Note also that "fair use" is a strictly US legal concept. Other countries do not have it. Some European countries have "fair dealing" which is somewhat similar, but rather more limited. In any case, a non-commercial use can still be very much a copyright infringement.

Of course, one obvious route is to ask permission. If the author is willing to permit your use of his character, you have no problem. He might do this for nothing more than a mention in an acknowledgements section, he might want payment, or he might be unwilling to accept your use on any terms. There is no knowing unless you ask. I would suggest that you be very specific in what use, and how much, you are asking for. Be sure you get permission, if it is granted, in writing.