class 6 copyright, winter, 2010 characters randal c. picker leffmann professor of commercial law the...

Class 6Copyright, Winter, 2010

Characters

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

Characters and Derivative Works

Key Questions What are we doing when we focus on the

question of the copyrightability of characters?

What (incremental) work would that construct do relative to our derivative works rules?

April 21, 2023 Copyright © 2005-10 Randal C. Picker 2

Characters and Derivative Works

Are there uses of characters that we want to allow or block that we won’t achieve that result if we simply use our generic derivative works rules?


Start Here

www.fanfiction.net



Owning Characters

Nichols (2nd Cir. 1930) (Learned Hand) The Specificity Test

“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”


Hand’s Characters Malvolio

Protected but not a “vain and foppish steward who became amorous of his mistress”

Sparknotes on Malvolio “The straitlaced steward—or head servant—in the household

of Lady Olivia. Malvolio is very efficient but also very self-righteous, and he has a poor opinion of drinking, singing, and fun. His priggishness and haughty attitude earn him the enmity of Sir Toby, Sir Andrew, and Maria, who play a cruel trick on him, making him believe that Olivia is in love with him. In his fantasies about marrying his mistress, he reveals a powerful ambition to rise above his social class.”


Warner Brothers (9th Cir. 1954)

Core Facts Hammett authors The Maltese Falcon

(TMF) It is published in serial form by Pro-

Distributors Corporation (PDC) PDC copyrights TMF PDC assigns the copyright in TMF to Knopf


Warner Brothers

Hammett and Knopf enter into contract with Warner Bros.

Knopf does limited assignment of certain aspects of copyright to Warner Bros.

Warner sues CBS for copyright infringement when Hammett contracts with CBS regarding the use of the character Sam Spade


9th Circuit Analysis

Contract Characters not specifically referenced Authors routinely use characters again,

especially detective stories (Sherlock Holmes)

Interpret contract against sophisticated party like Warner Bros.



Copyright “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 copyright.”



“We conclude that even if the owners assigned their complete rights in the copyright to the Falcon, such assignment did not prevent the author from using the characters therein, in other stories. The characters were vehicles for the story told, and the vehicles did not go with the sale of the story.”


Framing This

Prior to 1976 Prior to Publication

Hammett has state law rights in The Maltese Falcon as story and whatever rights attached in characters, such as Sam Spade

After Publication PDC and then Knopf have copyright in TMF


Framing This

As to characters, 9th Circuit holds not copyrightable

This means Not that characters enter public domain, but

that characters remain outside of federal copyright and inside the state law system for protecting works

Hammett retains control over characters


Warner Bros. Now

After 1976 Copyright arises on fixation of TMF (and not

at separate point of publication) and in the characters at the same time, if those characters are copyrightable


Anderson v. Stallone

Core Facts Sly Stallone is Rocky: plays the character in

three movies, authors the script for each one

May 82: Discusses potential plot for Rocky IV in public

June 82: Anderson sees Rocky III, authors script for potential Rocky IV, using characters from movies


Anderson v. Stallone

Anderson has some sort of contact with people high up at MGM

Stallone makes Rocky IV Anderson sues for copyright infringement of

his script


103(a)’s Penalty Regime

(a) The subject matter of copyright as specified

by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.


Key Questions

Does Stallone have a separately protectable interest in the Rocky character?

What lines separates the protectable from the unprotectable?

Is this different from our regime for famous trademarks?


Gaiman v. McFarlane: Text v. Pictures

360 F.3d 655 (7th Cir. 2004) Core Facts

McFarlane invites four writers to help create scripts for issue of Spawn

Not done as work made for hire Gaiman text creates three new “characters”

illustrated by McFarlane Are the characters copyrightable?


[Spawn]


Spawn No. 9


CountCogliostro


MedievalSpawn


The Test in McFarlane?

Says the Court “Although Gaiman’s verbal description of

Cogliostro may well have been of a stock character, once he was drawn and named and given speech he became sufficiently distinctive to be copyrightable.”

Text vs. Pictures? Note that this is a joint authorship case

class 6 copyright, winter, 2010 characters randal c. picker leffmann professor of commercial law the...

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