When character types are copyright

We all know there is no copyright on ideas. You can take an idea —any idea —and turn it into a story.

How many books have been written about the search for the holy grail, for example? Or King Arthur and his knights? How many stories are based on myths and legends and folk stories from around the world? How many stories do you know about elves? Thousands.

At the other end of the spectrum you can’t create a fast action military man called Schofield with scarred eyes and nickname him Scarecrow. Matthew Reilly owns Scarecrow. Likewise untouchable is Jack Ryan, Tom Clancy’s military historian. Both these authors would probably sue you, and win.

It’s fairly clear at each end of the spectrum as to what is copyrightable, and what is not, but there is a big grey area in the middle.

J.R.R. Tolkien’s influence on fantasy is legendary. So many writers base their fantasy novels on the worlds Tolkien created, even if they have different names and different characters. Even the role-playing game Dungeons and Dragons is based on fantasy novels

(The creator of Dungeons & Dragons, Gary) Gygax added a few of his own innovations as well. A long time fan of pulp sword & sorcery writers like Robert E. Howard, Fritz Lieber, and Jack Vance, Gygax shamelessly cribbed from the worlds that had been created by those authors. The most obvious inspiration was the “Vancian” magic system (sometimes called “fire and forget”), in which wizards have to re-learn their spells every time they use them. In an odd side note, though, Gygax himself claims that one of the biggest fantasy authors ever didn’t have much influence on the development of Dungeons & Dragons.
“I’m not a big J.R.R. Tolkien fan,” Gygax said, “though I really enjoyed the movies. I pretty much yawned my way through The Lord of the Rings.” Still, minimal as it might have been, the Middle-earth influence is certainly present, even at the beginning. Halflings were called Hobbits in the original rules—until Tolkien estate lawyers wielding +5 Notices of Copyright Infringement stepped in.
Magic & Memories: The Complete History of Dungeons & Dragons, GameSpy, August 2004

The other day I read the first pages of an unpublished novel. The story was set in a world similar to our own, with a few extras, like elves and halflings.

It was an excellent story, I’d like to have read more. I remember thinking at the time though, this sounds like something from Forgotten Realms. And it was true. If you discounted the modern setting, the elf and the halfling could have come straight from the pages of any Dungeons & Dragons (D&D) book (of which Forgotten Realms is a line).

I don’t know whether the story stayed true to the characterisation of these characters or whether they branched off into something a little different. I do recall thinking at the time that if I was writing this I would really want to check out the Forgotten Realms site to ensure that I wasn’t violating any of their copyrights.

When we start writing we often borrow from other books, even without realising it. The story I mentioned above was really good. I’m just not sure that if I was an editor I would touch it without a few fairly major changes.

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