This question, posed and answered at Jane Friedman’s blog, surprised me. I thought the answer was obviously yes. Nobody can lift Harry Potter out of Hogwarts and drop him into their own fictional world and write a story with him as a character. If they do, that’s fanfic and technically illegal, though I know a lot of authors are fine with fanfic and I don’t see a problem with it myself.
But that being so, why is there a question?
Here are some highlights from the post:
Courts have held, in certain circumstances, that fictional characters are protectable in their own right.
So I guess in other circumstances, they aren’t. That still surprises me.
A character must be well delineated to be protected.
This apparently means that Gandalf the Grey might be protected, but The Old Man Who is a Wizard definitely is not. That makes sense. I can certainly see that broad categories of characters can’t and shouldn’t be protected under copyright law, any more than “school for young wizards in training” can be protected under copyright law.
A character is protected under the “story being told” test when he dominates the story in a way that there would be no story without him.
And this is probably why fanfic is technically breaking copyright law: because most of the time, the fanfic story utterly depends on use of a well-delineated, well-known fictional character.
While on the subject of fanfic, I think this is the beginning of the excellent fanfic starring Byerly Vorrutyer and Rish. If you haven’t read it, you might want to take a look.