The announcement last month of a MMO based on Robert Jordan's Wheel of Time had me thinking about how safe it would be to invest millions of dollars into a series which borrows very heavily from other copyrighted works.
The first book in Lord of the Rings is called Fellowship of the Ring. It is a story about how a group of young peasants living in bucolic tranquility are befriended by a mysterious magician. Soon dark and evil figures come seeking the youngsters who are forced to flee. They are aided by the henchman of the magician who secretly is the rightful heir of a broken kingdom. As they flee they take refuge in an ancient ruin where one of them is injured by evil magic that may prove very difficult to cure.
The first book in Wheel of Time is called The Eye of the World. It is a story about how a group of young peasants living in bucolic tranquility are befriended by a mysterious magician. Soon dark and evil figures come seeking the youngsters who are forced to flee. They are aided by the henchman of the magician who secretly is the rightful heir of a broken kingdom. As they flee they take refuge in an ancient ruin where one of them is injured by evil magic that may prove very difficult to cure.
According to wikipedia:
"Robert Jordan has stated that he consciously intended the early chapters of The Eye of the World to evoke the Shire of Middle-earth in J. R. R. Tolkien's The Lord of the Rings. Other strong allusions to The Lord of the Rings exist as well, particularly the incorporeal and invisible Dark Lord, the dark home realm of Mordor compared to Thakan'dar (as well as Shayol Ghul' Pit of Doom to the fiery pit of Mount Doom), obvious similarities between Trollocs and Orcs, Myrddraal and Nazgûl, and Padan Fain and Gollum."
The series also owes much to Frank Herbert's Dune.
This type of borrowing is known in copyright law as a "derivative work".
Under US law the type of borrowing that Jordan did is probably permitted. According to the Chilling Effects Clearinghouse:
The law strikes an uneasy balance between an author's or artist's right to profit from their works and other artists' and authors' right to build upon previous works to make new works.
Interestingly under UK law you can't make derivative works without permission unless you are an American. Seems daft but it's official.
So Tolkien as a copyright-protected British author can be pillaged by Jordan who is American provided his work was within "fair use". Storylines and stock characters are not copyrightable under American law. (Source).
Of course on reflection it's clear that we can't make the way Americans produce entertainment actionable here if we want to import American entertainment but it's still bizarre to have a law that can be broken with a wave of a US passport.
Now even under American law you can't rip off characters:
Question: Can I take a character from a movie, like Chewbacca from Star Wars, and use it in a play with a very different plot and otherwise different characters?
Answer: Probably not.? The people who hold copyright in Star Wars own the characters as well as the plot, the filmed images, etc. Placing a distinctive fictional character in a different context or medium is still copying that character, and therefore infringement.
So wasn't Jordan just using Tolkien's characters like Aragorn/Lan?
No, not quite.
None of the characters are exact clones. Lan is probably the closest but there are distinct differences. Tolkien wrote before the popularisation of martial arts. Lan's characterisation is greatly enhanced by the description of his martial arts skills and forms, a brilliantly written westernisation of Chinese martial arts forms. He is also immensely physically strong and implacable which Aragorn isn't. More Arnold Schwarzenegger than Viggo Mortensen. He's also the Warder of Moiraine which is a completely different relationship to Aragorn's relationship with Gandalf plus there's a hint of sexual tension (which I certainly didn't notice between Aragorn and Gandalf!). Generally Aragorn is confident and attractive where Lan is repressed. (Note: I'm just considering Book One here, what happens after makes the characters even more different).
So you can't quite say he used Aragorn. Nor that Matrim and Perrin were Merry and Pippin. They're not clearly the same people.
So Wheel of Time is not in breach of Tolkien's copyright or Herbert's copyright but it would be if Jordan had been from the UK.
Lastly making a plagiarism action stick in the American courts is really hard. The notable successful cases seem to have been extraordinary blatant such as the 80 word for word quotes in Alex Haley's Roots. In this parodic letter Philip Nobile imagines the author bragging about pulling his Pullitzer prize winning scam.
Copyright sucks, you can't own my thoughts, what's old Prof Tolkien who popped his clogs in 1973 gonna do with $100m dollars now anyway, yada yada yada.
As Oscar Wilde said:
"Of course I plagiarise. It is the privilege of the appreciative man"
Disclaimer: I'm not a lawyer and this opinion is based on internet research not case and statute law research. On the other hand every citizen has the right to know and discuss the law of the world, to pass the rules by which we live into the custody of a privileged few is to abstain from freedom.