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[ashkey]

I'm an artist who has created a number of character designs and illustrations based on fictional characters from novels. These are my visual interpretation of said characters, who only exist within the text of the book. Now I would like to sell prints of my artwork. Does this violate copyright law? The design is my own, and no text from the original author is included in the image.

Thanks very much

[Zonath]

I think that, on the surface, you would be making a 'derivative work' as described in 17 USC §101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

And copyright law restricts the creation of derivative works without the permission of the copyright owner, as seen in 17 USC §106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(2) to prepare derivative works based upon the copyrighted work;

Since you claim to be creating illustrations and character designs based on characters from novels, you may already have committed copyright infringement simply by creating the illustrations, assuming your use doesn't come within some affirmative defense such as fair use.

[JSonnabend]

While Zonath might be right, I think at the very least, it's an awfully close call.  I am aware of no case where a visual interpretation of a written character description was deemed a derivative work. 

Instead, I think there is a strong argument that the visual depiction is a new expression of the underlying idea conveyed by written expression.  Perhaps there is case law to the contrary, but that's my preliminary view.

- Jeff

[chugan]

I think it depends on the extent you used the descriptions of the characters in the book.  If the character was a guy with three eyes, was 6'5" tall, and always wore a dress with cowboy boots--and your drawing depicts that--I think it is a derivative work which needs a license.

On the other hand, a tall, dark handsome fellow who smokes Pall Malls is probably too generic to be protected.

Just my 50 cents.

Chris

http://nashbillies.wordpress.com/

[BobRoberts]

I would think more along the lines of Chugan and Zonah (with no case law to back it up).  If you are selling artwork that the public will recognize as those fictional literary characters, and the Copyright protection still persists in those characters, then I would think that you'd have a problem with creating a derivitive work that infringes the original Copyright.

Now, if copyright rights have expired in the stories using the fictional characters (i.e, Tom Sawyer, Huck Finn, characters from 'Little Women', etc...), it would seem that the copyright in the characters would have expired as well.  Now, a gray area would be a modern rendition of an expired character; a generic Santa Clause rendition would be fine.  But the Coca-Cola rendition, if still protected by Copyright Rights, I would think could pose a problem.   

The reason that I think this would be different from an 'idea' mentioned by Jim  (at least in some circumstances) is because for a literary character tp be protected, it must be described sufficiently for one to be able to somewhat predict its reaction to circumstances.  Now, a story that has a wizard in it won't stop you from portraying a 'generic' Wizard in a painting.  And a rendition of Merlin the Wizard would likely be OK so long as it doesn't copy  another's modern (and Copyright protected) rendition of Merlin.  However, when you add details to the wizard to show it as a boy, with black round-frame glasses, and a lighting bolt on his forhead, then I would think that you infringed the character, and not the idea of a wizard.   
 
Good luck...

[JSonnabend]

If the character was a guy with three eyes, was 6'5" tall, and always wore a dress with cowboy boots--and your drawing depicts that--I
think it is a derivative work which needs a license.

How is that an expression of an idea and not the underlying idea itself?  A guy with three eyes, 6'5, wearing a dress and cowboy boots could be expressed in many different ways.  You've factually described the concept, not a particular expression of it.

- Jef

[chugan]

If the character was a guy with three eyes, was 6'5" tall, and always wore a dress with cowboy boots--and your drawing depicts that--I
think it is a derivative work which needs a license.

How is that an expression of an idea and not the underlying idea itself?  A guy with three eyes, 6'5, wearing a dress and cowboy boots could be expressed in many different ways.  You've factually described the concept, not a particular expression of it.

- Jef

Not sure what your question is.  My point was that the underlying character may, or may not, be protected.

[chugan]

If the character was a guy with three eyes, was 6'5" tall, and always wore a dress with cowboy boots--and your drawing depicts that--I
think it is a derivative work which needs a license.

How is that an expression of an idea and not the underlying idea itself?  A guy with three eyes, 6'5, wearing a dress and cowboy boots could be expressed in many different ways.  You've factually described the concept, not a particular expression of it.

- Jef

If the art is an expression of protected elements of the underlying character, it is a derivative work and needs a license.

Chris
http://nashbillies.wordpress.com/

[JSonnabend]

If the art is an expression of protected elements of the underlying character, it is a derivative work and needs a license.

Chris
http://nashbillies.wordpress.com/

Right, that's a simple enough statement of the law.  No argument from me there.

But where are the "protected elements" in the hypothetical?  Height 6'5"?  Three eyes?  Wears a dress and boots?  There are an infinite number of ways of expressing that.  The description is a simple, factual expression that is merged with the underlying idea (at best).

In practice, most written descriptions of a character will be difficult to protect in the manner outlined by the OP.

- Jeff

[chugan]

If the art is an expression of protected elements of the underlying character, it is a derivative work and needs a license.

Chris
http://nashbillies.wordpress.com/

Right, that's a simple enough statement of the law.  No argument from me there.

But where are the "protected elements" in the hypothetical?  Height 6'5"?  Three eyes?  Wears a dress and boots?  There are an infinite number of ways of expressing that.  The description is a simple, factual expression that is merged with the underlying idea (at best).

In practice, most written descriptions of a character will be difficult to protect in the manner outlined by the OP.

- Jeff

OK--I understand and agree. FWIW, I defended an infringement case in the Middle District of Tennessee where the co-defendant was accused of doing just that--creating an image based on a written description in Plaintiff's work.  Judge Nixon filtered it as generic, but it really was generic--a young girl who had a guardian angel appear over her shoulder and give her advice.

Not sure what the judge would have done with my 3 eyed cross-dresser.

Chris

http://nashbillies.wordpress.com/

[JSonnabend]

You know, I can never get enough of a good three-eyed cross dresser story . . .