William Fisher on copyright protection for fictional characters: transcript

Key points

• Fictional characters now have copyright protection independent of the larger work, so sequels using them need permission.
• The Ninth Circuit's Sam Spade test requires that a character constitute the story being told, but the court has moved away from it.
• Other US jurisdictions ask only whether a character is well-delineated, a simpler and more lenient rule.
• In the Rocky IV case, Anderson's script was held to be an infringing derivative work, so it had no copyright protection of its own.
• Characters who change over time, like Superman, or are played by several actors, like James Bond, usually still qualify; only lightly sketched stock characters fail.
• Almost all fan fiction is legally problematic, though affirmative defenses discussed in a later lecture may apply.

Chapters

1. 0:14Fictional characters as copyrightable works
2. 0:45The Sam Spade test and the Maltese Falcon case
3. 1:59The well-delineated test
4. 2:34The Rocky IV dispute with Timothy Anderson
5. 5:33Evolving characters: Superman and James Bond
6. 7:19Stock characters and the fan fiction problem

Full transcript

0:14A 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 characters who appeared in the original.

0:45To be sure, not all fictional characters get this protection. To qualify, a character must be important. U.S. 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, quote, constitute the story being told. The facts of the case that prompted the 9th circuit to adopt this restrictive approach were as follows.

1:20Dashiell 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, other 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.

1:59So 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.

2:34Sylvester 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 underappreciated, 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.

3:09The 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.

3:47The 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, quote, has become identified, says the court, with specific character traits ranging from his speaking mannerisms to his physical characteristics, close quote.

4:19Presumably, 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, quote, 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.

4:58The 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.

5:33But many 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?

6:09Difficult 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 can 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.

6:43Tuxedos 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 or 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.

7:19In other words, a simple or familiar stereotype. This exclusion, you'll probably notice, is a cousin of the sans-affaires 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.

8:04Now 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.

Source and licence

Recording: File:William Fisher CopyrightX Lecture 3 5.webm by BerkmanCenter (2015-01-27), via Wikimedia Commons. Licence: CC BY 3.0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.