From Zombies to Wizards: Copyright Law and Originality in Writing

Sharon Givoni Consulting Copyright, Intellectual Property

For writers, copyright law can play a significant role in protecting their original works and ensuring they receive appropriate recognition and compensation for their efforts.

Under Australian copyright law, copyright protects the original expression of ideas, rather than the ideas themselves. This means that while ideas themselves are not protectable, the particular way in which they are expressed is.

When Inspiration Strikes

For example, if two writers were to write books about a dystopian society, each individual author’s work would be protected by copyright, even though they are both exploring similar ideas.

What is protected – ideas or the expression of those ideas?

It is a well-known concept that copyright does not protect ideas but only the expression of ideas.

But what does this mean in practice, especially for writers?

The answer is that while an author’s specific words, sentences, and paragraphs are protected by copyright, the underlying ideas, concepts, or themes expressed in a work are not.

Copyright Law 101 for Writers

Let’s take an example …

For example, if two writers both write stories about a group of survivors after a zombie apocalypse, each writer’s particular expression of that idea – the specific characters, settings, plot twists, and dialogue – would be protected under copyright law.

However, the underlying idea of a zombie apocalypse and a group of survivors is not protected by copyright, and other writers are free to use that idea in their own writings.

This distinction is important because it allows for a balance between the protection of creativity and the promotion of innovation and the exchange of ideas. Copyright aims to encourage authors to create new and original works. At the same time is also allows others to draw inspiration from those works and create their own original works.

Copyright Law and Originality in Writing

As you can imagine, the distinction is not always clear-cut. There may be cases where the line between an idea and its expression is blurred. In such cases, the courts in Australia may look at a number of factors such as the level of originality, the similarity between two works, and the degree of access the accused infringer had to the original work if any (something the courts call “the nexus”) and the like to determine whether copyright infringement may have occurred.

Copyright corner – case studies

Examples of copyright law in action demonstrate the importance of writers being mindful of their use of others’ works.

The Holy Grail versus The Da Vinci Code (UK)

One such case occurred in the UK with Dan Brown’s book, The Da Vinci Code. The authors of The Holy Grail claimed that Brown had plagiarised their book. They argued that his work “appropriated the architecture” of their manuscript, which was written first, in 1982.

The judge dismissed the case, ruling that the similarities between the two works were in the ideas explored, rather than the expression of those ideas.

The Holy Grail was largely comprised of unprotectable historical facts, and while facts can be drawn upon, the labour of the original author cannot be appropriated.

J.K. Rowling, author of the Harry Potter series, was also herself the subject of a copyright case in the US in 2010.

The estate of late author Adrian Jacobs claimed that Rowling had copied elements of Jacobs’ earlier 1987 book.
From Zombies to Wizards: Copyright Law and Originality in Writing
The judge dismissed the case, ruling that the total concept and feel of the two books were different.

The bad guys attacking the good guys is not original.

Elijah Schkeiban, author of Bats & Butterflies sued the writer of the movie Avatar for alleged copyright infringement.

The judge ruled that universal theme, such as a “weak hero” and a plot twist in which “the bad guys attack the good guys” cannot be protected under copyright law.

The Dogs by award-winning Australian writer

More recently, the novel “The Dogs” by award-winning Australian writer, JM Hughes, was withdrawn from the longlist for The Miles Franklin Literary Award due to alleged numerous instances of plagiarism.

Hughes claimed that his original notes got mixed with his research notes.

Writers must be careful when incorporating others’ works into their own. Innocence is not a defence. If it’s copied its copied even if you didn’t mean to encroach on the rights of another writer.

Ideas versus expression of ideas

In conclusion, while it may be tempting to use others’ works in your own writing, it is essential to be mindful of copyright law. As demonstrated by these cases, similarities between works can lead to legal disputes. Important factors include whether the similarities are in the ideas explored rather than the expression of those ideas.

Remember as well that even if sources are acknowledged, copyright infringement can still occur, so it is essential to be cautious when incorporating others’ works into your own.

Tips – How to avoid infringing someone else’s copyright and how to protect your own writing

Tips for writers to avoid infringing someone else’s copyright and ensure that your own rights are protected are:

Conduct research: When writing about a topic or subject, it’s essential to research and understand the copyright laws and regulations that may apply to the material you are using. This will help you avoid infringing on someone else’s copyright. If unsure, seek legal advice from a copyright lawyer before proceeding.
Create original works: The best way to avoid copyright infringement is to create original work. Avoid copying or reproducing content from other sources without permission.
Keep a record of your work: Keep a record of your original work, including the date of creation and any subsequent revisions. This can help in proving ownership and authorship in case of any disputes.
Use copyright notices: Use copyright notices on your work to indicate that you are the owner of the copyright.
Avoid taking too many elements of someone else’s written work.
Be aware of the concept of “substantial reproduction”: under Australian copyright law, this is a qualitive test not a quantitative one – did you take an important part? As confusing as it may sound, even a quantitatively small part may amount to a substantial part of a copyright work if the quality of what has been taken is considered to be high.
Obtain permission: If you want to use someone else’s content, seek permission from the copyright owner before using it in your work. This can involve getting a licence, paying a fee or even just a one-off attribution.
Attribute the source: If you do use someone else’s content, even if you have permission, ensure that you properly attribute the source.
There is no general ‘fair use’ defence available under Australia law. What this means is that even if you are not going to make money from using parts of someone else’s writing, that is not a defence to copyright infringement.
Using images: Using images or artwork that are not your own in your work without obtaining permission from the copyright owner can result in copyright infringement (including images found on the internet).
Translating someone else’s work: Translating someone else’s work without obtaining permission from the copyright owner will usually amount to copyright infringement.
Monitor your work: Monitor the use of your work in other books and publications to ensure that no one is infringing on your copyright. If you discover that someone may have copied your work, you may be entitled to legal remedies.
Get legal advice: If you are unsure about the copyright status of a particular work, seek legal advice from a lawyer who specialises in intellectual property law.

Don’t forget: The contents of this article are not to be relied upon as a substitute for tailored legal advice. It is a general overview only.

About the writer
Sharon Givoni has been practising in copyright law for over 23 years and has extensive experience in advising writers, ghost-writers, editors, journalists, of articles and books, educational institutions, lecturers and publishers. To get assistance with your copyright needs contact her on: info@iplegal.com.au or call her on 0410 557 907. Her website is located at: www.sharongivoni.com.au