So before I get started with this frustrating topic, I want to mention that some of this is my moral opinion, while other things are fact based on legal cases and legal definitions and so on (which I will source if I find them), if I have not sourced it that does not mean it isn’t true, and if you find a source that matches or counters what I have said I will amend the post appropriately. With that said, this tends to be a hot topic, specifically around plagiarism and what is fair to be used or not. So I’d prefer to keep things gentle and mild as I’m not here to actually debate anything, I simply want to answer a question(s) that I’ve asked myself many times.
That question happens to be surrounding the Legalities of things that are deemed ‘fairy tales‘ and their frequent use in literature and novels and movies and all other types of media. To start I need to mark what I define a fairy tale as, since many people tend to have different definitions of what a fairy tale is, and mine is rather broad.
Fairy Tale: A work of fiction that incorporates fantastical folkloric elements as powerful forces, beings, or characters. It always possesses magic in one form or another (even if not necessarily called magic) and may or may not begin with ‘Once Upon a Time’ and end with ‘Happily Ever After’. However, it always is something that could have occurred sometime in the past, present or future of our living world, despite having elements that the average person does not see in our world (even if it might be stated that it is in an entirely different world).
I recognize that this definition is incredibly broad, but that’s the point. There’s A LOT that can fall under this branch, including many works in the “Urban Fantasy” category. In fact it could be argued that most of Fantasy could fall under this category, and for good reason. So, with my definition done I’d like to move into the realm of the legalities around ‘Fairy-tale Retellings’ and more.
You’ve probably heard of the phrase Fairy Tale Retelling before, as it could be considered an entire genre with the amount of works out there that are attributed to it. Such as Scarlet, Ash, and even my novel series Beyond Ever After. And you are probably wondering at this point what I mean by the legalities around this kind of stuff, clearly people have redone those fairy tales, as they’ve been written and turned into TV shows and so on, and they draw from sources that can be traced back thousands of years in some cases, which means they are well out of the copyright era. So the case is closed right?
There are a few reasons why, but I’ll start with the first one. Copyright Laws.
You see, copyright is… and I’m going to openly steal a phrase many whovians should recognize… ‘Wibbly Wobbly Timey Whimey’. The truth is, you copyright LITERALLY anything you have written. The note from this morning, and the five hundred page novel are all copywritten the moment you wrote it. But copyright itself is an unusual system since when you copyright something you have taken intellectual property of it. But what does that intellectual property entail?
Well, the best way to put it is in a series of: What you can Do!
Say you want to write a novel with the main character named Luke Skywalker. You can do that. So long as you do not make that main character meet an old man, have that man give him a high-tech sword made of light, and then have him learn telekinesis and be really good at driving and have great reflexes. By that point, you’ve crossed into the territory of not just using a name from another copyrighted source, but the intellectual character with that name, which puts you in copyright infringement, when just the name was fine.
Interestingly enough, you can do all the stuff I mentioned above, so long as you change the name of Luke Skywalker to something else and so long as you change your setting, such as being in the modern world instead of a galaxy far, far away. Or you can not have all that above and just have a blond, blue-eyed ‘farm-boy-looking’ character named Luke Skywalker and you still wouldn’t be in infringement because you can’t copyright a character’s name or look.
This sounds a little fishy right? But that’s the thing, copyright is very mutable. And actually quite difficult to prove against unless it’s literally straight up plagiarism which can be shown (such as word for word text copy). Essentially when you’ve copyrighted something, no one else can produce the same work that you produced, and… then some not quite definable areas of things like if someone does a character with name, look, history, persona, and events that occur to them the same as yours. Essentially if someone does copy close to everything about your novel regardless of whether it was word for word text copy or not, then that’s copyright infringement, but there’s not really any known values and if you are stuck in that murky area, then if the work is famous enough it will likely win a copyright infringement lawsuit.
You might be thinking at this point how someone can copyright a name and look of a character then. That’s where Trademark comes in, which is a whole other messed up and vicious ball game, as you can’t actually copyright a character name or title of a book or pretty much any name/title (which means yes, you can have a book titled the same as another book so long as the inside content was different and the book title wasn’t trademarked which they usually aren’t). Trademark does that, and I think one of the more famous Trademarks is Tinker Bell. This trademark is actually owned by Disney, but there was a lawsuit around it with another company that owned the trademark Tinkerbell. Regardless, in my hypothetical example above if your main character was instead a tiny fairy that sprinkled dust and was called Tinker Bell, that is instantly trademark infringement, but not copyright infringement, as you would then have to have the tiny faerie named Tinker Bell go on a ‘plot’ or adventure that is almost identical or nearly the same as one used in the faeries series by Disney.
Now the whole issue with names, I bring up because in my work I frequently will reference characters that would be counted as ‘fairy tale characters’ but I include a lot of more recent works, such as Peter Pan, but also ones that are still under copyright because it hasn’t even been fifty years, such as “The Last Unicorn” and “The Princess Bride” both of which easily fall into my fairy tale category and are essentially the fairy tale books I grew up with.
Now I don’t steal any part of these novels, and I’m more than happy to mention that they inspired me in various ways, but I don’t use any of the events or even the characters. I do however use a name for one of my characters (actually a title). That is “The Dread Pirate Roberts”. That name was never trademarked, however the novel it comes from is still under copyright, which means, can I fairly use that name?
Well, yes, actually. This is because the character name is actually Alonso Roberts, and is only fleetingly referenced as ‘Future Dread Pirate Roberts’ because he wants to assume the pirate title known as “dread” eventually. This means my use of The Dread Pirate Roberts actually falls under the realm of referential use for TRADEMARK LAWS. I tricked you didn’t I? You see regardless of my use of ‘The Dread Pirate Roberts’ no one owns that name or title as a trademark, which means it is fair use for anyone regardless of what copyrights may have that name in them. As long as I steer clear of having him wear a black mask and have him rescue the woman of his dreams I don’t have to worry about copyright infringement… because I do actually own that character and although he has a title that can be connected to a known name he is not remotely the same character as that one. But this is theory, based on trademark and copyright laws.
In reality, and where I wanted to go since this is what sparked the conversation in my head, my use of ‘The Dread Pirate Roberts’ actually falls into the Fan Fiction category of copyright. Which may surprise you to discover that you can actually copyright fan fiction (legally). This essentially means that the owner of the novel with the character ‘The Dread Pirate Roberts’ could sue me if they so wished, but as to whether it would lead to a successful lawsuit would depend on whether my use is deemed as ‘Fair Use’, which is yet another mutable term which has a few elements that can be defined such as brief use (which is what happens in my novel). This means even if William Goldman chose to sue me over my use of that name (which all accounts I can find of him would say no), I have a strong case backed by lack of trademark, fair use law, and referential law in copyright that should guarantee that I’m allowed to use the name for a pirate character. Which is enough for me to warrant actually using the name in my book.
With all that law out-of-the-way though, I mentioned something briefly in the last paragraph, about how in reality my novel falls into the category of Fan Fiction. Believe it or not, a lot of works that are not just Fairy Tale Retellings fall into a fan fiction category but aren’t set as that because they have been changed slightly or produce fan fiction on works that are in public domain now. Books like Gay Pride and Prejudice, or the Lizzie Bennet diaries, and pretty much anything that could be marked as a ‘retelling’ would fall in the fan fiction category.
And I know, Fan Fiction tends to get a lot of crap thrown onto it, about breaking copyright laws and so on, which is not helped by people like Cassandra Clare and her Frankenstein fan-fiction. But there is fan fiction that can be copyrighted legally and I use the word fan fiction because that is what it is, you wouldn’t be retelling it if you weren’t a fan of the original work (regardless of whether you wanted to see events different).
But this brings up an interesting point of Fairy Tale Retellings, as yes they are fan fiction of fairy tales (many of which are essentially fan fiction or re craftings from the Disney versions). It’s accepted that since these re-tellings are around works that are in the public domain they can be used, and that they aren’t copyrighted. But they are actually. If you retell something like Pride and Prejudice or the Little Red Riding Hood Story, your retelling is copyrighted even though the source material of that story is in public domain. This means yes, Disney does in fact own the copyright of THEIR version of many fairy tales such as Cinderella. But only theirs. This is known as Derivative copyright. They are taking something that is already in the public domain (or copyright) and expanding on it by changing it from written work to movies. (And eventually books with the slightly revised version of the fairy tale). This derivative concept is what allows people to republish old works that had previously been in the public domain as something they can sell and copyright.
It is because of derivative copyright that you still have large collections of the Grimm Fairy Tales that you buy, because those tales can continually be re-constituted into a new collection of tales by just adding or removing a few and rearranging them.
As you can imagine, this means fairy tale retellings in general can fall in this category as well, this means that while you hold copyright of your new derivative work, you actually only hold copyright of the elements that you changed from the original. So if you have a retelling of Red Riding Hood that is set in the modern era of our world, you can potentially hold copyright if someone tries to do the same thing, but you hold no copyright over that person if they just use the plot of red riding hood with completely different characters and design in the modern world, because the red riding hood plot itself as well as those characters are in public domain still and not something you had copyrighted.
To put it more simply, the change Disney made is that they turned the stories in films which essentially means that Disney has copyright over those fairy tales if they are made as a movie, but not the tales or characters themselves.
And that’s where we touch on the next area: Copyright between retellings.
If two people make a fairy tale retelling of Red Riding Hood, they have copyright over that retelling. This means if another author comes along and writes a retelling of Red Riding Hood, so long as the work is tangibly different from those other two retellings and from the original source, it can be copyrighted. This accounts largely to why you will see many different endings to the same fairy tale these days (even if it’s only slightly).
Now note that I mentioned it had to be different from those other retellings. Although all the re-tellings are drawing from the same source, the author of that retelling still has rights around the intellectual property of what they did in telling that story. So if you want Snow White and the Big Bad Wolf to get together and have lots of wolf-like babies, you should probably be aware that you are encroaching on copyright infringement… but only where comics/graphic novels are concerned, as that is a plot and event that occurs in the Fables series which is a comic book retelling of many fairy tales… well… kind of retelling.
You see, there’s another area of fairy tales I haven’t really touched and that’s the ones that don’t really fall under the derivative category. In the comic Fables, there are fairy tale characters yes, but other than their name (which is copyrightable) they don’t have the same connection to their fairy tale counterparts because many fairy tale characters lack well… characterization (many don’t even have names, which makes them so recognizable across languages as being a similar story). Fables focuses more on the characters lives NOW, long after their story has been told and now they are living in the real world and dealing with their lives. This means everything from the fables series is really entirely new story-wise, and since the names can’t be copyrighted, this makes the Fables series actually copyrightable under just normal copyright laws, not derivative ones.
But in that case then, would a retelling that does the same thing, focusing the characters after their fairy tale happened be subject to copyright infringement then?
That one is kind of up in the air, since it can depend. If you are using the fairy tale characters but inventing your own world and giving each of the characters a personality different from the one’s in Fables and following a different plot, then you are okay. But if you start copying some of the character’s lives from Fables then you start hitting the murky waters that will depend on whether the creators of that series want to sue you.
It gets even better when I introduce something that was recently in the news. There was a ‘discovery’ of a bunch of new fairy tales recently in Germany, and those fairy tales can already be bought in the German language. Many of these tales are new, and some are ones we can attribute to ones like Cinderella. But in this case since it was just published are all the works in it held under copyright and can’t be touched except with fair use?
This one’s an interesting area, because the way anthologies work (which is what a fairy tale collection is) you can copyright each individual story to someone in the anthology and then copyright the anthology itself. This means each piece in the collection belongs to someone and then the entire collection as it is shown belongs to someone. But in the case of those recently discovered fairy tales, they were all previously published many years ago and were just uncovered again. This means that the individual copyright of those fairy tales has gone to public domain BUT the collection being re-released has been copyrighted. This means you can do derivatives of individual fairy tales from that collection, but you can’t touch the collection as a whole. Roughly…
Again, like everything I state in this there’s a lot of mutability when it comes to copyright as there are no clear definitions on a lot of things (including fair use) and you can get slapped with a copyright infringement lawsuit even though legally you were within your ‘fair use’ due to things like a work simply being so famous that it’s only ever attributed to a specific person (such as ‘Middle Earth’ for Tolkien). That is known as the Unfair competition clause, which essentially prevents anyone from using something that has been established even if it technically isn’t against copyright or trademark.
It’s because of things like the unfair competition and the establishment of things like some trademark laws that we end up with a lot of trademark bullying. In the end, the copyright and trademark legal systems (for America) are not even close to perfect and favor anything that is ‘famous’ over non-famous things. But at the same time if they weren’t as mutable as they are currently, then we would have a very long, frustrating and complicated way of copyrighting everything.
There is one last area I want to touch and that has to do with the incredible bullying around music lyrics in novels. This is particularly close to my heart considering the titles of each of my novels in Beyond Ever After are parodies of song titles out in the world. While song titles can’t actually be copyrighted (or trademarked), song lyrics are HEAVILY controlled as to their use and many novelists have been sued for using only a single line of lyric in their work despite it widely being accepted by most people (except the music industry) that you can use up to two lines of a song ‘generally’ under ‘fair use’.
It causes quite a few headaches for pretty much everyone with how much the music industry bullies people around use of lyrics many of which are only brief pieces of a line. It is easily on the level of trademark bullying. But I bring it up because I actually have two lines of lyrics in my first novel of my series… here’s the interesting thing though. I wasn’t AWARE that they were lyrics until just last month, despite the novel already being published months before that. The lines in the book aren’t word for word the lyrics and they are spoken as dialogue between two characters, but they are close enough that if someone was listening to the song frequently then read my book, they could probably notice it. Luckily the lyrics for that song are out of copyright, but it still brings up an interesting thing.
Song lyrics can LITERALLY be anything. Any lines of text you want could become song lyrics, and those lyrics are copyrighted (and strictly), so it could be argued that every novel out there is in copyright infringement based on the concept that there is a lyric out there somewhere that would match at least one sentence in that novel. This can be especially the case if you have any cliché phrases in your novel as songs are littered with cliché phrases often (particularly love songs).
So where is the line drawn with that? Well for the most part it tends to only be if the lyric is sung by a character or specifically mentioned as a lyric in some way. If you include two lines of lyric at the beginning of each of your chapters, that would count. But if your character says the words of a song lyric in a conversation that has nothing to do with songs, that shouldn’t count (but that doesn’t mean the music industry wouldn’t sue and win). In all my research I can’t actually find anything about using the words of a song lyric as say conversation and whether that infringes, but if it does… I would certainly devote my time to making sure I pointed out famous novels that had infringed on song lyric copyright to note how stupid it is to the degree it’s being managed.
The whole issue around song lyrics though brings up an interesting point around Disney using songs in their fairy tale movies, as they then have strict control over quite a bit of the movie that isn’t connected to just the original tale by it being song lyrics instead of just normal movie prose and pictures (which wouldn’t be copyrighted word for word).
Overall when it comes down to it, there’s all kinds of weird laws and restrictions and changes based around copyright and trademark without even touching fairy tales themselves whether it be in the fan fiction, derivative or regular categories. And as always, considering how much I discussed law in this one, I have to note that I am by no means a legal authority and I’m not providing legal advice, I’m merely discussing the laws and how they have affected me with my fairy tale series. Ironically I have to say this so I don’t get sued by anyone who might read this and be led astray by my random notes that may or may not be accurate in the years to come.
I might eventually discuss this topic again or one that is similar in my mind as I really wanted to talk about Urban Fantasy and Fairy Tales as well but never got to it. But if you have some other copyright questions look here.
So until then,