How do I get permission to use a video game character in my book?

Question

So, I am in India and I am writing a novel. I was planning to add a few characters from 2 video games, Bendy from Bendy and The Ink Machine and Sans from Undertale. I am not writing fanfiction and only adding them for a bit of lore and a cameo appearance. It is not that the name is similar, but I would like to add the characters. How do I get permission from the creators on using them? I am planning to publish the book at one point.

David Siegel · Accepted Answer · 2021-07-01T21:31:06.437

Two Paths

There are two basic paths that a person might follow in attempting to include a cameo appearance by a character from another work whose copyright s/he does not own.

Request and obtain permission from the copyright holder.
Claim that an exception to copyright applies.

Permission

The first path is simple, but may prove futile. If the copyright holder can be found (which is often easy, although sometimes very hard) one communicates with the holder, requesting permission to use the character. The holder may or may not respond. No response must be taken as a denial of permission. Te holder may ask questions about the nature of the use. The holder may require payment of a fee. The holder may attach any conditions s/he pleases to the permission. The holder may require a contract to be signed. The holder is under no obligation to respond at all, or to make any particular response.

Communication may be attempted by any method, including email, postal mail, or telephone, for which the holder's contact info is available. If the holder grants permission it would be a good idea to get that in writing, and dated. An email would accomplish that, as would a letter from the holder.

Exception to Copyright -- in General

The second path means making a somewhat complex legal assessment. The law of copyright exceptions varies significantly by country. Whether a given use fits the exceptions in the law of any particular country is a highly fact-based assessment, and cannot be determined without knowing the details of the use, and matching those against the law and court decisions in that country. Obtaining legal advice is often wise in evaluating such a situation.

In addition, if a work is published so as to be available in multiple countries (as would be the case for a work distributed over the internet) a copyright holder might sue in any one of those countries. In such a case, the relevant law would be that of the country where suit is brought, although that country must have some jurisdiction over the publisher or creator of an allegedly infringing work to enforce a judgement against that person. This the exceptions to copyright available would be those of the country where suit is brought.

The article "Fair Use: Comparing US and Indian Copyright Law" from Jurist compares exceptions proceeded in the two systems. It does not, however discuss this specific situation.

Exception to Copyright -- United States

In the united-states the primary exception to copyright is fair use which is codified at 17 USC 107. This establishes four factors to be considered. These have been discussed im several threads here on law.se, including Is licensing required to use an excerpt of a song within a recording? fairly recently. Here I will say only that there is a long tradition of permitting literary references, and a cameo appearance of a character that is not central to the plot of a new work, and does not harm the market for the source work is quite likely to be held to be fair use under US law. However, that will only matter in a US court, as fair use is a very specifically US legal concept.

Exception to Copyright -- India

In india copyright is governed by the Copyright Act of 1957, as amended. This covers exceptions to copyright in section 52, which has many subsections covering various specific situations.

Section 52(a) provides that one exception is:

(a) a fair dealing with any work, not being a computer programme, for the purposes of—
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.

None of the other subsections of section 52, from (aa) thru (zc), seem to be applicable to the situation in the question. I am not sure how the case law of India has applied 52 (a) or has dealt with the tradition of literary references. A quick search did not find any relevant cases, which probably is a problem with the search. None of the specific purposes listed in 52(a) seem to apply to the situation described in the question.

It might be a very good idea to seek advice from a lawyer familiar specifically with copyright law in India, and with how "fair dealing" is interpreted there.

score 0 · Answer 2 · answered Jul 01 '21 at 14:06

You are drastically overcomplicating this. There is no complicated legal ritual involving lawyers and reams of very specific paperwork. You need the owner of the copyright to say it's ok. That's literally it.

Most copyright holders make their identity and in some cases contact details easy to find. Finding that Toby Fox owns the copyright of Undertale was trivial. The contact details took a little more googling, largely because the Undertale site was down.

The hard part is getting a well known creator to even acknowledge, much less deal with, some random kid but that's not a legal question.