Q: Can I use a minor yet intriguing character from a famous work as the protagonist of my novel? I know it’s been done with novels like Wide Sargasso Sea, using Mrs. Rochester from Jane Eyre, but would a secondary character from a novel published before 1950 (yet still in print) also be allowed?—Anonymous
A: Characters are protected by copyright as long as they’re original and well-defined—the traits that probably make them desirable to use in your own work.
“If a character has a distinctive name and well-defined personality—whether it’s Harry Potter or his sidekicks Hermione Granger or Ron Weasley—they belong to the copyright holder, and you can’t use them without permission,” says our legal expert Amy Cook. “Character names can even become well-known enough to warrant trademark protection.”
Now, just because you can’t use someone else’s work doesn’t mean you can’t be inspired by it. And if the character has a rather common name and isn’t particularly fleshed out, she’s up for grabs (e.g., a perky young college student named Jennifer who used to babysit the main character and doesn’t play much of a role in the book).
One other avenue that authors are taking is “fan fiction.” Fan fiction writers take characters and settings from other works and build their own stories around them and, generally, share them online for free. Technically, it’s still copyright infringement. But some authors don’t mind this and, in fact, are flattered—especially if it’s not for profit. Some other creators, however, like horror author Anne Rice, simply won’t stand for their characters and fantasy worlds to be used by others. It’s going to depend on the litigiousness of the creator.
FUN NOTE: Bestselling authors Steve Berry, James Rollins, and Brad Thor have been known to write each other's characters into their stories (then again, they are all friends).