Claire Corlett

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William Fisher, CopyrightX: Lecture 3.5, The Subject Matter of Copyright: Fictional Characters

William Fisher, CopyrightX: Lecture 3.5, The Subject Matter of Copyright: Fictional Characters


A relatively recent addition to
the set of copyrightable works consists of fictional characters. A character described in
a larger fictional work, such as a novel or a movie, now enjoys
copyright protection independent of the work in which he or she appears. The primary practical
implication of this principle is that no one without permission may
write a sequel to a fictional narrative that includes one or more
of the characters who appeared in the original. To be sure, not all fictional
characters get this protection. To qualify, a character
must be important. US courts have articulated
two different tests for determining which
characters are shielded. The first test, commonly
known as the Sam Spade Test, was announced long ago by the Court
of Appeals for the Ninth Circuit. To be protectable under this
approach, a character must, “constitute the story being told.” The facts of the case that
prompted the Ninth Circuit to adopt this restrictive approach were
as follows– Dashiell Hammett, the author of the classic
detective story, The Maltese Falcon assigned the copyright in
the story to Warner Brothers, which made a film based on the book. Subsequently, Hammett granted the
copyright to the Sam Spade character, older than his incarnation
in The Maltese Falcon to CBS. Warner Brothers brought suit,
contending that Sam Spade already belonged to Warner Brothers. The Ninth Circuit eventually
rejected this argument, announcing the Story Being
Told Test and suggesting that Sam Spade did not satisfy it. So that’s the first approach. The Ninth Circuit has never
expressly repudiated it, however, in several recent opinions,
the court has implicitly distanced itself from
that approach, moving toward the rule applied in all
other US jurisdictions, which is simpler and more lenient. Under the second approach a character
is protected under copyright law so long as he or she is well delineated. Here’s a relatively
recent controversy that suggests the scope of this doctrine. Sylvester Stallone,
as you probably know, wrote the scripts for each of
the first three Rocky movies. He then also played the role of
the title character, Rocky Balboa. In each of the three
movies, Rocky is depicted as an under appreciated,
sullen, but heroic boxer. In 1982, Stallone and
MGM were considering producing yet another,
fourth, movie in the series. An unaffiliated author by
the name of Timothy Anderson wrote a script for such a fourth movie. The central figure in the
script was, of course, Rocky. This time, Rocky is depicted
as fighting a Russian boxer in a contest with strong
nationalist overtones. MGM apparently seriously
considered using Anderson’s script, but eventually decided not to do so. When MGM and Stallone eventually
produced their own version of Rocky IV in which Rocky is
depicted as fighting a Russian, Anderson brought suit, contending
that his copyright in his script was infringed by the MGM Rocky IV movie. The district court rejected
Anderson’s argument on several grounds, one of which
is central to the issue before us. In the court’s judgment,
the character of Rocky clearly satisfied both the old Sam Spade
Test and the modern Well Delineated test. Indeed, in the court’s
judgment, this was obvious. The Rocky character,
“has become identified,” says the court, “with
specific character traits ranging from his speaking mannerisms
to his physical characteristics.” Presumably, the court is here referring
to Stallone’s famous physique, which is more or less the same
in all four of the movies. Anderson’s script,
the court pointed out, appropriated the character
of Rocky without permission. Indeed, says the judge, the
character was “lifted lock, stock, and barrel from the prior Rocky movies.” As a result, Anderson’s
script constituted an infringing derivative work. In US copyright law,
infringing derivative works are denied copyright
protection, at least if the material taken
from the plaintiff’s work pervades the infringing derivative. The net result was that even if
the MGM Rocky IV movie closely tracked Anderson’s
script, Anderson could not prevail because his script was
tainted by its unauthorized inclusion of the copyrighted
character, Rocky, and thus did not, itself, enjoy
copyright protection. Application of these principles is
reasonably straightforward in cases like Anderson’s in which the character
at issue is stable and well-etched, and in which the defendant
appropriates that character verbatim. But many monitor modern
controversies don’t fit this pattern. For example, some of the most
famous fictional characters evolve over the course of
their commercial careers. An important example would
be Superman, whose depiction in the original comic
books changes as he becomes more popular, as the narrative
associated with his character shifts, and finally, when he becomes
associated in the minds of the public at large with the face and
body of Christopher Reeve. Which, if any of the
Superman incarnations, thus enjoys copyright protection? Difficult to say. Here’s another complicating
factor– it’s sometimes said that a fictional character
is more likely to enjoy protection if he or she is presented visually– as
in a comic book or movie– than if he or she is described in prose. But this advantage could
become a disadvantage if more than one actor plays
the part of the character, thereby blurring the
character’s characteristics. The premier example is
James Bond, who has now been presented by six different actors. Tuxedos and a British
accent can only go so far in obscuring the differences
among these depictions. In circumstances of these two sorts,
in which the character changes significantly over time, or in
which the character is associated with several different actors, does the
character forfeit copyright protection? Typically, no. Modern courts are quite forgiving
of indeterminacy of these sorts. Pretty much the only
kind of character who will fail to qualify
for copyright protection nowadays is a lightly sketched,
so-called stock character. In other words, a simple
or familiar stereotype. This exclusion, you
will probably notice, is a cousin of the Scenes
A Faire doctrine, which we discussed in lecture
number one, which denies copyright protection
to an image or scene that has become standard in a genre. This exclusion doesn’t
much matter, however, because there’s usually not much point
in appropriating stock characters. So to return to the main line, a crucial
implication of the protectability of fictional characters
is that almost all fan fiction, which is increasingly common
nowadays, is legally problematic. Now, I hasten to add that fan
fiction may escape liability under one of the affirmative
defenses to copyright infringement that we’ll discuss in detail
in lecture number nine. But the fact that fan
fiction almost always lifts one or more character from a
famous work creates a legal risk.

1 comment on “William Fisher, CopyrightX: Lecture 3.5, The Subject Matter of Copyright: Fictional Characters

  1. Does anyone know if I can have my narrator mention Godzillas roar in a fictional book? Godzilla doesn't make an appearance, for clarification.

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