Tensions in secondary authorship and copyright law

Fiction interrogates the balance between the rights of authors and the interests of society in terms of copyright protection. Copyright law aims to encourage the creative production of works by giving authors exclusive rights over their literary property but also seeks to promote the public interest by ensuring works are accessible to the public. A particularly neglected discourse in the tension between authorial rights and the interests of society is the idea of book characters as non-copyrightable.

On one hand, Authors are concerned about exclusive protection over their work and hence want to protect their characters, as “tis the Child of his Inventions, the Brat of his Brain; if he sells his Property, it then becomes the Right of the Purchaser.”[1]. However, fictional characters typically cannot be copyrighted as copyright protection does not extend to ideas unless the character possesses “distinctive traits”. Authors who fear that secondary authors would use their characters, therefore, resort to completing their character’s narrative absolutely by rushing out works. For example, Defoe’s The Farther Adventures of Robinson Crusoe; Being the Second and Last Part of His Life was published in the same year, as his first novel, to complete Crusoe’s character absolutely [1].

As we have explored, Coetzee’s Foe successfully latches onto Robinson Crusoe’s narrative. Given Defoe’s condemnation of secondary authors in the preamble of his Second work — “The Injury these Men do the Proprietor of this Work, is a Practice all honest Men abhor; and [the Author] believes he may challenge them to shew the Difference between that and Robbing on the Highway, or Breaking open a House.” [1] — it is unlikely that Defoe would be pleased with Coetzee’s Foe.

Arguably the borrowing of Friday as a Defoe-created character is controversial given that his name remains unchanged too (vs Crusoe’s character in Foe is called “Cruso”). Nevertheless, Defoe is aware of this potential conflict thereby distinguishing Friday’s physical appearance in his novel. Friday is described as “black, a Negro with a head of fuzzy wool” and he is not as tall as Susan [2], whereas in Robinson Crusoe he is “native” (not black African) and “tall and well shap’d” [3]. Most notably, Friday in Foe has no tongue which completely changes the meaning of his character.

But is this sufficient? Readers know instantly that Foe is a rewriting of Robinson Crusoe and can quickly link the characters who possess the same name. Perhaps more needs to be done to grant authors rights over characters as inventions of their minds.