Writing About the Psychology of Characters Under Copyright

People ask published authors for advice on book publishing. For many who ask me, I must point out that my books are too different from what they hope to publish. For example, I do not know what they need to do to sell a novel. Because my books analyzing famous fictional characters to talk about real psychology make up a narrow niche, my experience with the publishing industry will probably not resemble theirs. Some, though, also hope to write nonfiction about fiction.

One common question is, "How do you get permission to write about characters under copyright by someone else?" The short answer is that I don't. When you have freedom of speech, you have the freedom to critique someone else's work, analyze its content, or relate its significance to the real world.

"In its most general sense, a fair use is any copying of copyrighted material done for a limited and 'transformative' purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner." —Richard Stim (2019), author of Getting Permission.

When writers talk about copyrighted characters and stories, most of what they write does not copy the original work. Writers who examine the psychology of such characters are effectively critiquing their relevance to real human nature. Such analysis will include some description of characters, plots, and perhaps settings. Sometimes it will also quote the original material verbatim.

Four factors figure into an evaluation of whether analysis falls under fair use (Princeton University, n.d.; U.S. Copyright Office, n.d.).

Purpose and character of the use

Non-profit use is more likely to be legally permitted than commercial use. Transformative works (those that add something new, have different purposes from the originals, and do not substitute for the originals) are more likely to be considered fair.

I encountered the former once when requesting a statement of no objection from a publisher for the inclusion of specific comic book images that would illustrate psychological concepts. Despite fair use, my own publisher (like many publishers reasonably wary of nuisance lawsuits or cease and desist orders) would not run the images without written confirmation that the publisher of the source material would not make trouble. While a statement of no objection is not explicit permission, it is a formal acknowledgment that they will not object. Two of my books include images thanks to the receipt of such statements. A third book for which we requested a statement of no objection did not get one specifically because it was a commercial work. As for the transformative issue, analysis is inherently transformative.

Nature of the copyrighted work

When the original work is technical or fact-based, its use is more likely to be considered fair than if it had been creative work, such as a novel or song.

An author can write about the same facts as someone else but not publish a novel starring someone else's creation. Fan films and written fan fiction (fanfic) are particularly likely to run into trouble in this regard if they aim to turn a profit—a problem combining both of the first two factors. When writing about fiction or other creative works, therefore, include plenty of fact-based analysis and be particularly careful about heeding all other requirements for fair use. Psychology authors have an advantage in that they are already writing about psychological facts, albeit through the lens of fiction.

Amount and substantiality of the portion used

A fair use argument is stronger when no more of the original work is used than is absolutely needed for the fair use purpose. Refrain from reproducing more of the original work than necessary to make a point. Decorative or other use without direct commentary or critique poses a problem.

If a writer reproduces an entire paragraph or transcribes an entire scene from a movie or TV show because it will help set the mood and tone, that is decorative and excessive. That does not preclude the possibility that a longer portion may be truly essential to make the point, such as to demonstrate a character's state of mind, but tread carefully and consider whether analysis could be served as well by a condensed description.

Because music is so important to the television series Supernatural, every chapter in the book Supernatural Psychology: Roads Less Traveled includes its own "Road Music" sidebar relating specific psychological concepts to different songs played within the show. Those sidebars achieve that descriptively, though, without quoting any lyrics.

Psychology Essential Reads

Is a Texas Bitcoin Miner Making People Sick?

What Is a Scientific Model?

Effect of the use upon the potential market for or value of the copyrighted work

Will the new work hurt the original in a monetary way? Courts evaluating this consider two potential kinds of harm to the copyright holder: Will people spend money on the new work as a substitute for the original? Will people license the work through an unofficial agent (such as when courts ruled against commercial photocopy shops that were selling copies of articles in course-packs for college students) instead of the official avenue for available materials? In and of itself, the mere existence of a psychology book analyzing copyrighted material does not inherently deter anyone from spending money on the original.

Fair use is often referred to as educational or academic fair use because of its prevalence in academic settings and because uses for educational purposes tend to enjoy greater freedom (Aufderheide, 2011). Even though an analysis about the psychology of fiction or any other copyrighted material may serve a commercial purpose as well, it nevertheless serves the higher-order function of educating in a way tangential to the original work.