In my day job as a publishing lawyer, I often get asked how copyright impacts an author's ability to use a specific setting in works of fiction. Like many other copyright questions (and, honestly, every other question a lawyer gets asked), the answer is "it depends."
Fortunately, the applicable rules are fairly straightforward and easy to analyze.
The key to understanding how copyright (and infringement) relates to settings is remembering that copyright law protects an author’s unique expression, but does not protect either facts or the “building blocks” of expression.
A setting which is unique, or created entirely by the author, receives far more protection than settings based on historical events or real places…but that’s not the end of the story.
A setting (like a character or other elements of an author’s work) receives increasing protection as the author "creates" it with more distinct and original detail.
Entirely fictitious settings--like J.K. Rowling's famous Hogwart's School of Witchcraft and Wizardry or the "Battle School" that appears in Orson Scott Card's novel Ender's Game--receive the highest level of protection, because they are entirely fictitious, and the authors' own creations. You cannot use someone else's entirely fictitious setting without permission. Doing so is copyright infringement.
Semi-fictitious settings--like the version of the shogun's palace I created in my second mystery, Blade of the Samurai--receive protection to the extent of their original, creative elements. I based my shogun's palace on a real place (Kyoto's Nijo Castle), and although I can't claim copyright ownership of the Nijo Castle layout, it would infringe my copyright for someone to copy the fictitious details I layered onto the building and grounds to create my fictitious version.
"Real world" settings - for example, the Oval Office of the U.S. White House -- receive less copyright protection still. As with other settings, the copyrightable elements are only those which the author creates; the factual or historical details can be used (or re-used) by anyone.
Let’s take a closer look at some important key components:
Copyright Law Does Not Protect Historical (or other) Facts.
If you write a historical novel based on the explosion of the Hindenburg, you can’t prevent other authors from using that topic. You cannot prevent them from using the Hindenburg as a setting, and you can’t claim infringement if the real historical figures who appear in your novel also appear in another author’s work.
Copyright Does Give (Limited) Protection to Unique Expressions of Historical Events.
You can protect the unique, creative way in which you describe and express historical events, but the closer your expression comes to duplicating historical facts, the thinner the protection you receive. For example, you can’t stop another author from using the actual newspaper headlines that appeared on the day the Hindenburg exploded. However, if you create a fictitious newspaper, and write a fictitious headline, you can prevent other authors from using that portion of your work.
Fictitious Locations Based on Genuine Ones Receive More Copyright Protection Than Real-World Locations.
Actual facts about real-world locations can't be protected by copyright. If you set your novel at the Empire State Building, and describe it accurately, you can’t stop other authors from doing the same. You can stop copying of the creative elements of your work, but not the use of facts.
The level of protection increases if you use a fictitious building based on—but different from—a real one. Consider Nakatomi Plaza, the office building in the movie Die Hard. Nakatomi Plaza isn’t real place; the building the director used in the film is called Fox Plaza, and it’s located in Century City, California. By fictionalizing the building, the scriptwriters allowed themselves not only more leniency in constructing sets, but also ensured that no one could legally duplicate those exact descriptions for use in another work.
Completely Fictitious Locations Receive the Highest Level of Copyright Protection.
J.K. Rowling’s wizard academy, Hogwarts, is located . . . somewhere. Rowling constructed a completely fictitious (and highly creative) setting for her novels, which also means she receives the highest possible level of copyright protection. By making Hogwarts a completely fictitious place, with a layout and description she created, she ensured that it belonged to Harry Potter’s world—her world—alone.
If you copy identifiable details from Hogwarts (aside from ones that would qualify as “basic building blocks of expression”), you may be infringing Rowling's copyright. (Note: Unlicensed "Fan Fiction" is almost always copyright infringement, even if it's not prosecuted by the copyright holders.)
What is a “Basic Building Block” of Expression?
The answer is as simple as sandwich cookies and Oreos. The idea of taking two cookies and putting a filling between them, thereby creating a “cookie sandwich,” is a basic building block of expression—a generic concept.
Anyone can make a sandwich cookie, with any cookie and any filling.
However, if you use a particular recipe of chocolate cookie, with designs on one side, and you fill it with a specific mixture of white, sugary filling, and if you have the courage to stamp the word “Oreo” on the side, you’ve copied something that belongs to someone else, and you may get sued. (In the baking world, the lawsuit would be for trademark infringement. If you duplicate an author’s wordsmithed Oreo, the result is copyright infringement.)
The basic building blocks of expression are generic concepts, settings, and character archetypes: the whodunit mystery, the subway, and the cop.
The farther an author strays from those basic, generic archetypes, the higher the level of copyright protection his or her creation will receive.
Any author can write about “a cop.” An ex-cop who becomes a butcher receives a little more protection. But give that ex-cop butcher a love of tapioca pudding, a pet tarantula, and a vaccuum phobia, and you’re getting into territory nobody else can copy without consequences.
The takeaway lesson? It’s fine to use fact-based settings (and most of us need to, when our works are based in the “ordinary world”) – but know that other authors can use those settings too, as long as they don’t copy your work. The more creative (and fictitious) your settings, the more protection your work receives.
So . . .write the most creative story you can, and use even real-world facts in as unique and individual a manner as possible.
Your copyrights--and your readers--will thank you for it.