Mar 20 2012
Are Fictional Characters Copyrightable?
Short Answer: It depends.
Longer Answer:
The courts have constructed a two part test to determine if characters enjoy copyright. This test has been unevenly applied across the circuit courts (the courts just below the US Supreme Court). The first test is to determine whether the character is capable of copyright. In other words, a vague, undeveloped character may not even be capable of copyright. This test is known as the “distinct delineation” threshold.
Distinct Delineation Threshold
Judge Learned Hand (greatest name of a judge ever) developed the “distinctly delineated” threshold in the landmark 1930 case Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930) A playwright wrote a play titled “Abie’s Irish Rose” about a wealthy Jewish family with a widowed father who runs a business with his only child, a son. The son was a philanderer who mostly engages in relationships with Gentiles. The son secretly marries an Irish Catholic but lies to his father that the secret wife is Jewish. The girl’s father is from California and has a great distaste for Jews and hopes his daughter marries a good Irishman. The two are disowned by their respective fathers, but the grandchildren bring the families together again.
Universal Pictures produced a movie called “The Cohens and The Kellys” featuring two poor families living next door to each other, one Irish and one Jewish. The Jewish father owns a business and the Irish father is a policeman. The wives are alive. The Jewish family inherits a fortune and moves away. The Jewish girl and the Irish boy marry secretly. The daughter is disowned and then ultimately the two families are brought together by the grandchildren.
In regards to the characters themselves, Judge Hand wrote:
Nor need we hold that the same may not be true as to the characters, quite in- dependently of the “plot” proper, though, as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copy- righted; that is the penalty an author must bear for marking them too indistinctly.
….
It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman. The defendant has not taken from her more than their prototypes have contained for many decades. If so, obviously so to generalize her copyright, would allow her to cover what was not original with her.
Id. Thus, because the characters were “stock” and lacked distinct features and characteristics, the Universal Pictures movie did not infringe.
In Detective Comics, Inc. v. Bruns Publications, 111 F.2d 432 (2nd Cir. 1940) the Second Circuit was asked to determine whether a comic called Wonderman infringed on the Superman copyright. Wonderman argued that “various attributes of “Superman” find prototypes or analogues among the heroes of literature and mythology” Id. at 433. The Second Circuit disagreed, finding that the “pictorial representations and verbal descriptions of ‘Superman’ are not a mere delineation of a benevolent Hercules, but embody an arrangement of incidents and literary expressions original with the author, they are proper subjects of copyright and susceptible to infringement.” Id. at 434
The Superman issue was revisited several times but to contrary results in the Warner Bros, Inc. v. ABC, 720 F.2d 231 (2nd Cir. 1983) ABC produced a television show called Hero which depicted an ordinary and timid high school teacher, divorced and struggling with his son, turning into a super hero, complete with super hero abilities, and a lycra costume.
If a defendant copies substantial portions of a plaintiff’s sequence of events, he does not escape infringement by adding original episodes somewhere along the line. A graphic or three-dimensional work is created to be perceived as an entirety. Significant dissimilarities between two works of this sort inevitably lessen the similarity that would otherwise exist between the total perceptions of the two works. The graphic rendering of a character has aspects of both the linear, literary mode and the multi-dimensional total perception. What the character thinks, feels, says, and does and the descriptions conveyed by the author through the comments of other characters in the work episodically fill out a viewer’s 242*242 understanding of the character. At the same time, the visual perception of the character tends to create a dominant impression against which the similarity of a defendant’s character may be readily compared, and significant differences readily noted.
…
Ultimately, care must be taken to draw the elusive distinction between a substantially similar character that infringes a copyrighted character despite slight differences in appearance, behavior, or traits, and a somewhat similar though non-infringing character whose appearance, behavior, or traits, and especially their combination, significantly differ from those of a copyrighted character, even though the second character is reminiscent of the first one. Stirring one’s memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only the latter is infringement.
…
A character is an aggregation of the particular talents and traits his creator selected for him. That each one may be an idea does not diminish the expressive aspect of the combination. But just as similarity cannot be rejected by isolating as an idea each characteristic the characters have in common, it cannot be found when the total perception of all the ideas as expressed in each character is fundamentally different.
Id. at 241-42. The Court determined that the “overall perception” of the main character in Hero was substantionally different and it is not infringing when the character shares “some of the superhuman traits popularized by the Superman character and now widely shared within the superhero genre.” Id. at 243.
The Southern District of New York used the distinctly delineated test in finding that Tarzan and the characters in the Tarzan works of Edgar Rice Burroughs were “well-delineated” and entitled to protection:
Thus, in the case at bar, characters that are well-delineated in the Tarzan works of Edgar Rice Burroughs are protected from infringement by the copyright in the work itself. Since appropriation of a well-delineated character contained in copyrighted works without the copyright proprietor’s authorization would constitute infringement, it must be concluded that the grant by which one acquires the right to use that character constitutes a right arising under copyright within the meaning of § 304(c).
The only issue remaining is whether any of the characters MGM was entitled to use under its license were sufficiently delineated by the author to be copyrightable. It is beyond cavil that the character “Tarzan” is delineated in a sufficiently distinctive fashion to be copyrightable. See Edgar Rice Burroughs, Inc. v. Mann Theatres, 195 U.S.P.Q. 159 (C.D.Cal.1976); Brylawski, Protection of Characters — Sam Spade Revisited, 22 Bull. Copyright Soc’y 77, 83-84 (1974). Tarzan is the ape-man. He is an individual closely in tune with his jungle environment, able to communicate with animals yet able to experience human emotions. He is athletic, innocent, youthful, gentle and strong. He is Tarzan.
Id. at 391. The ultimate ruling was upheld by the Second Circuit but did not address the copyrightability of characters directly.
The Story Being Told
In Warner Brothers v. Columbia Broadcasting Systems, 216 F.2d 945 (9th Cir. 1954) , the court took a different, more liberal approach with a new standard called “The Story Being Told.”
Dashiell Hammett and his publisher Knopf granted exclusive rights to Warner Brothers to use The Maltese Falcon “writings” in moving pictures, radio and television. (For all of $8,500) Later Hammett assigned the rights to the characters to CBS including Detective Sam Space. Warner sued CBS asserting that Warner only had the right to the characters The Maltese Falcon.
It is our conception of the area covered by the copyright statute that when a study of the two writings is made and it is plain from the study that one of them is not in fact the creation of the putative author, but instead has been copied in substantial part exactly or in transparent re-phrasing to produce essentially the story of the other writing, it infringes.
It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.
Id. at 950. The Ninth Circuit determined that the characters such as Sam Spade were not the story but rather merely a vehicle for the story being told. What an obscure and confusing standard, right?
The Ninth Circuit revisited the “story being told” test in Walt Disney Productions v. Air Pirates, 581 F.2d 751 (1978). Air Pirates produced a comic that “centered around ‘a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture.’” Id. at 753. (Think Disney porn) In this case, the Ninth Circuit basically said that the story being told doesn’t apply to characters that are graphically represented.
In reasoning that characters “are always limited and always fall into limited patterns,” Judge Stephens recognized that it is difficult to delineate distinctively a literary character. Cf. Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), certiorari denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795. When the author can add a visual image, however, the difficulty is reduced. See generally 1 Nimmer on Copyright § 30. Put another way, while many literary characters may embody little more than an unprotected idea (see Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977)), a comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression. Because comic book characters therefore are distinguishable from literary characters, the Warner Brothers language does not preclude protection of Disney’s characters.[11]
Id. at 755. Based on the language in the Air Pirates case, it could be safe to conclude that there is no copyright protection for characters in literary fiction. But wait, there’s more.
Judge Posner from the Seventh Circuit declared that Warner Brothers case and “the story being told” test dead (or rather he says the Air Pirate case killed it). In Gaiman v. McFarlane, 306 F.3d 644 (7th Cir. 2004), Neil Gaiman brought an infringement suit against another comic book writer and illustrator, McFarlane. McFarlane began publishing a comic book series called “Spawn”. The leading character in “Spawn” was Al Simmons. Gaiman argued that he had co ownership in the characters in Spawn, particularly Angela, Count Nicholas Cogliostro and Medieval Spawn (a name given by McFarlane) which Gaiman argued made the Spawn series successful. Interestingly McFarlane was the person who drew the characters whereas Gaiman was the one who suggested character traits and helped to craft the overall storyline. But the court viewed the two as co contributors and thus co owners of the copyrightable elements of the comic, including the characters.
McFarlane argued, without success, that the fictional characters are not copyrightable.
A stock character is a stock example of the operation of the doctrine, e.g., Cavalier v. Random House, Inc., 297 F.3d 815, 824-25 (9th Cir.2002); Williams v. Crichton, supra, 84 F.3d at 588-89, and a drunken old bum is a stock character. Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir.1986). If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175-76 (9th Cir.2003), and, in Learned Hand’s memorable paraphrase of Twelfth Night, “a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.” Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930). It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.
McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 25, 28 (2d Cir.1982) (Batman, though assumed rather than actually determined to be copyrightable); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir.1978) (Mickey Mouse et al.); Detective Comics v. Bruns Publications, 111 F.2d 432, 433-34 (2d Cir.1940) (Superman); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra, 73 F.2d at 278 (Betty Boop). As long as the character is distinctive, other authors can use the stock character out of which it may have been built without fear (well, without too much fear) of being accused as infringers.
Id. at 660.
Summary
The summary? The law is quite unsettled about whether characters in literary fiction are copyrightable. Judge Hand wrote in Nichols in regard to the substantial similarity test that “[n]obody has ever been able to fix that boundary, and nobody ever can.” Id. That’s a maxim that every person wondering about infringement will have to take to heart, whether that person is the original creator or the “second comer” as Hand would call her.
Final Note:
Courtney Milan reminded me of the Wendt v. Host International case in which the Ninth Circuit found that actors controlled a right of publicity for their fictional characters. Paramount Pictures owned the copyright to “Cheers” and granted a license to Host Interntional to create a series of bars with animatronic robots of Norm and Cliff. The actors, George Wendt and John Ratzenberger sued Host for using their likenesses in a way that Wendt and Rtazenberger had not authorized. The Wendt case went up and down from trial court to appellate court three times and ended up with the actors settling with the restauranteurs. The 1999 denial of rehearing is accompanied by a dissent from Alex Kozinski that begins, famously, with the line “Robots again.” Kozinski was referring to a Vanna White case that arose out of a robot wearing a blonde wig and looking nothing like Vanna. (The jury awarded 400,000 in damages). The Ninth Circuit, perhaps because it is the circuit in which California rests, has a broad right of publicity doctrine which is intended to protect famous people from things beyond using their face, voice, or name, but also the likeness of that famous person, measured in three dimensions.
The district court compared photographs of plaintiffs Wendt and Ratzenberger with photographs of the animatronic figures and took “judicial notice” of the fact that the figures were not identical to plaintiffs. This conclusion appears to have been the basis of the district court’s summary judgment on the section 3344 claims. We need not determine whether the district court’s purported taking of judicial notice was correct. Assuming that the facts judicially noticed are true, the case is not at an end. The question here is whether the three dimensional animatronic figures are sufficiently similar to plaintiffs to constitute their likenesses. Based on the limited record before us, it cannot be said as a matter of law that the figures are so dissimilar from plaintiffs that no reasonable trier of fact could find that them to be “likenesses.” That question must be determined by a comparison of the actual, three-dimensional entities.
Wendt v Host Int’l, 50 F.3d 18 (9th Cir. 1995)
Finally, my standard disclaimer: get thee to a lawyer if you have a specific question. This is an intellectual exercise, insofar as anything including “robots again” can be considered such. If you take any action based on what has been written here, we aren’t responsible for any damages you incur.
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Arts and Letters Links: Copyrightable characters, Imaginative Realism | A Distant Soil by Colleen Doran
Mar 20, 2012 @ 08:34:17
[...] very interesting article on whether or not characters enjoy copyright protection. Every creative should read all of this. In Detective Comics, Inc. v. Bruns Publications, 111 F.2d 432 (2nd Cir. 1940) the Second Circuit [...]
Mar 20, 2012 @ 09:15:54
This is the most concise yet thorough discussion of this knotty issue I have yet encountered. Bookmarked for future reference.
A question — in fanfiction (I am not part of any fan community, so this is honestly not clear to me), isn’t one of the main points to achieve recognizable similarity with the original characters, whether the plot details, relationships, or even the entire universe changes?
In other words, is the more a fanfic succeeds as fanfic, the more likely it is to be an infringement?
Mar 20, 2012 @ 09:39:25
@hapax: That’s my understanding too Hapax. That the more closely the fan fiction follows the original canon the more likely it is to be infringing unless the measurement of infringement depends more upon the commercialism aspect. Tushnet (who has a Q&A we will post tomorrow) and others argue that the mere fact that ff is done for no profit makes it fair use and thus not infringing.
Mar 20, 2012 @ 10:03:07
I find this really interesting and enlightening, so thank you.
To confuse the matter, in England and Wales* (not Britain, e.g. not counting Scotland – in spite of the fact I’m from Scotland, I don’t know much about Scots law’s stance on intellectual property), literary and graphic characters generally aren’t copyrightable. Reproducing a graphic character from a copyrighted work may be seen as an act of copyright infringement, though. As far as I know, literary characters don’t have this protection.
I believe that the only way to have that protection is through trade mark, e.g. Rowling/Warner Bros & Harry Potter films, but literary characters alone? I haven’t heard anything like it. That said, I believe fan fiction in England and Wales is generally safe because, since fan fiction is not-for-profit, it doesn’t affect the commercialism of trademarked film-version literary characters.
All this was gathered from work, various conversations and read-ups over years so I may be wrong, of course.
*In England and Wales (and I think Scotland?), copyright is automatically granted as soon as a work is created, and there’s no need to register a creation. It can be registered if a creator is that worried. So it’s voluntary, not required. I wonder if this is the case for other countries as well?
Mar 20, 2012 @ 10:06:47
@Maili: Oh Maili, I have to read that article that you sent me. As for when the copyright starts, in the US it is when the expression of the idea is fixed. I.e. written down, drawn, recorded, etc. However, enforcement of the copyright can’t really occur without registration. In essence, I think you would only be able to assert a request for injunctive relief. I’ve been thinking a lot about Master of the Universe. It is unregistered and was passed around for free so I can’t imagine what economic harm would inure to James if the work was published for free even on places like Amazon or BN.
Mar 20, 2012 @ 10:23:43
I kind of expect “Robots again.” from Judge Kosinski, but the Tarzan quote was an unlooked-for gift. “Tarzan is the ape-man … He is Tarzan.” Forever in the record. Awesome.
Jane, I’m thinking that you’ve now summarized the majority of relevant decisions in this post and your previous post on plagiarism and copyright. It seems to me that we are not going to get anything like settled law any time soon.
Mar 20, 2012 @ 10:27:23
@Jane: That actually makes sense (surprising as you and I know I’m not the brightest bulb in any building). Thanks for those details.
Mar 20, 2012 @ 10:34:16
I’ve become a cynic. I feel as if copyright exists in characters if a corporation has enough money to say it does. I hate that I think that. But I do.
Mar 20, 2012 @ 11:14:12
@Carolyn Jewel:
I kind of agree although it will be interesting when you have two big corporations claiming copyright that things will go to a head.
Mar 20, 2012 @ 12:36:59
@Jane: But you can register a copyright at any time. You just get perks for registering within a few months of creation or publication.
Mar 20, 2012 @ 12:40:11
@Deee: Sure, but the damages don’t begin until the registration occurs. Further, what damages have been incurred by the sharing of a book that has already been posted for free? It can’t be that impairs the market of the 50 Shades book because that work has been warranted by the author to be original work different than the fan fiction.
Mar 20, 2012 @ 18:40:15
@Jane: I’ll be interested in reading Ms. Tushnet’s post- I think you wrote in an earlier post that she takes support from a footnote/aside in a legal decision to do with copyright infringement – it seems to me that a footnote or an aside in a legal decision is nothing more than dicta; perhaps instructive, maybe persuasive but in no way settled/fixed. And the international legal position may be different yet again.
I have no dog in this fight, the legal aspects of this stuff just interest me.
Mar 20, 2012 @ 19:01:58
@Kaetrin: I don’t think that Tushnet’s entire argument on commercialism and fair use is based on the footnote, but that it was another piece of the legal pie that confirms this belief. I don’t want to be putting words into her mouth. The Q&A is up tomorrow. I think that there is a long line of cases in which individuals rest their opinions regarding the shape of the fair use argument.
Mar 20, 2012 @ 19:10:48
@Jane: Cool. Like I said, I’m looking forward to reading it. I find this stuff fascinating. The case references etc are so interesting to me.
Mar 20, 2012 @ 22:46:23
What a great post! Its amazing how completely convoluted and uncertain law is on this point. I thought of the “stock” character defense the other day–but I didn’t even know there was a case about it. My class had been making the argument that “Edward” and “Bella” were operating that way to some degree (we were arguing in a literary rather than legal framework), but it’s so interesting to see it laid out in this way. In my genre class, we also discussed the Hammett case when we read him. That case shocked students–so many people assume that characters/ideas belong to the author who creates them–when so often, the author has sold those rights. I am also intrigued how the law (or rather, its application) differs when a character is created visually and verbally (ie, film/TV or comic) vs. solely verbally.
Mar 21, 2012 @ 08:15:35
@Jane:
Actually, the original version of 509 Shades was a Twilight fanfiction called Master of the Universe. There are still copies of the fanfic around on the internet and hundreds of fanfiction readers read it first as Master of the Universe. I read it, on the author’s blog, now closed down, as Master of the Universe. All the author did was change the names of the principal characters, the rest is as the fanfic work itself.
So it doesn’t matter WHAT the author of the book says, it was originally a fanfiction and still is to my mind. If you want a copy of the original work to check, there are countless PDF versions floating around among Twilight fans. These facts will never die out and the issues of original versus fanfiction will continue to bite the author in the rear end until she shuffles off this mortal coil.
See here if you don’t believe me: http://docs6.chomikuj.pl/707673938,PL,0,1,Master-of-the-Universe-2-by-Snowqueens-Icedragon.pdf#bookmark1
Mar 21, 2012 @ 09:39:34
@Anne Jamison – I did not see a purely fictional test of copyrighted characters. Perhaps the closest is the recent JD Salinger suit. I should add that to my piece.
Mar 21, 2012 @ 20:41:10
Totally irrelevant to the legal issues, but another favorite name for a real judge is Kenesaw Mountain Landis. Even better, he was at one time the Commissioner of Baseball.
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Mar 25, 2012 @ 15:01:23
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Mar 26, 2012 @ 19:11:12
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Apr 01, 2012 @ 22:50:36
Even when the fictional characters are copyrighted, the holder of the copyright may not be able to enjoin the publication of the (allegedly) infringing material.
Consider Suntrust v. Houghton Mifflin, 252 F. 3d 1165 (11th Cir. 2001), where Margaret Mitchell’s estate sued the publishers of Alice Randall’s The Wind Done Gone, a parody of Gone With the Wind told from the perspective of the slaves. The issue wasn’t whether Mitchell’s heirs had a valid copyright in the characters, setting and plot, but rather was their injunction of the publication of Randall’s book a violation of Randall’s First Amendment rights. The Eleventh Circuit Court of Appeals reversed the lower court, holding that creation and publication of a carefully written parody constitutes fair use of the copyrighted material. The case settled when Houghton Mifflin agreed to make a donation to Morehouse college.
The Fair Use doctrine is not exactly clear-cut, but when an author like Randall is permitted to use the entire backdrop and several of the named characters from Mitchell’s work for her own novel highlighting institutional racism, fan fiction that borrows only the tone and broad outline of source material would seem to be completely safe.
Apr 02, 2012 @ 09:02:11
@Magdalen: I wouldn’t use the 11th Circuit case to say, in general terms, that something is completely safe. As Courtney Milan quoted the holding here. The Wind Done Gone’s success was based in large part on a parody defense. This same defense was used in Airstream without success.
Apr 03, 2012 @ 10:05:43
@Jane: It’s true that Suntrust is binding only in the 11th Circuit, but what’s telling about it is that the lower court’s ruling got overturned at all.
On its face, you would think that anyone who used Margaret Mitchell’s iconic characters and setting was violating the copyright. That Houghton Mifflin even had a defense is significant. Possibly the fact that The Wind Done Gone is social commentary on issues of race is dispositive, and a lesser purpose would have failed to meet whatever threshold the 11th Circuit chose to use for the parody/fair use exception.
As a general matter, to look at fan fiction and copyright assumes that a) the characters, setting or plot are unique enough to be protected by copyright and b) the allegedly infringing work actually uses enough of the copyrighted work to be enjoined. I’m not saying all fan fiction is safe. (I rather assume a lot of it is vulnerable to injunction and left alone only because it’s hardly costing the original author sales and so not worth the legal fees to get the injunction. Even diligent monitoring to send out cease-and-desist letters costs the author money.)
My point is simply this: even when an author has a copyright in her characters, that copyright is not an absolute bar to the use by others of those characters. All it takes is one case (e.g., Suntrust) to show an author that her copyright may not always allow her to enjoin infringing works. That’s a very different message than to suggest Suntrust is a sword for all would-be infringers and/or authors of fan fiction. As you imply, the Suntrust holding may not apply to any other situation.
I couldn’t find Airstream. Do you have a case citation? Thanks.
An Author
May 31, 2012 @ 07:32:47
[...] plots (boy meets girl) or characters (sidekick) are not copyrightable on their own, but that the main characters or specific plot details might have copyright protection in addition to the overall copyright of the original [...]