Zahr K. Said, Fixing Copyright in Characters: Literary Perspectives on a Legal Problem, 35 Cardozo L. Rev. 768 (2013), https://digitalcommons.law.uw.edu/faculty-articles/191
Cardozo Law Review
This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.
At the heart of the doctrinal confusion over the proper scope of protection for characters are a series of questions that literature can help answer: what is a character, and how can the law identify it as such? Can characters truly be protected independently of the work that embeds them, and if so, how much of the character should the law protect as such? What method should courts use to separate characters from their texts, for the purposes of assessing whether unauthorized uses of characters in new creative works constitute infringement? To whom do characters belong, and when? What should the law make of the role readers play in constructing, completing, and resuscitating characters?
As the confused case law makes plain, the law does not have good tools to answer these questions, even though the factual scenarios at stake in litigation continue to press courts for solutions. The turn to literature yields insights into the proper scope not just of character protection, but also more broadly of the derivative work right, which scholars have cited as an important area for copyright reform.
In clarifying the law’s doctrinal confusion, literary considerations can provide one piece in the larger puzzle of copyright reform. Ultimately, they can also help inform the inquiry into whether copyright or trademark, or neither, is proper for character protection.
Part I sets out the purpose and evolution of protection for fictional characters under copyright law. It describes the dominant tests used to determine whether characters will be independently protected, and discusses the confusion that has arisen in the law. Part II addresses the proper scope of protection for characters by broadly tracing the evolution of characters through literary history. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright unworkable.
After providing this literary background, Part II frames what the Article terms the “entanglement” problem. Starting in the eighteenth century, characters began to become more important, for readers and for markets. As characters rose in importance, I argue, they also became harder to extricate from their texts, for the purposes of treating them as independent pieces of intangible property under copyright law. Their disentanglement is a necessary, but inconsistent and often conclusory, part of copyright analysis that invites too much manipulation of the substantial similarity analysis.
Part III argues that in spite of copyright’s stated commitment to aesthetic neutrality, the law surrounding characters is not neutral and will never be neutral. Copyright encourages and rewards the creation of visually rendered (or visually evocative) characters over literary (or purely verbal) ones. The law encourages the creation of what literary theory terms “flat” rather than “round” characters. Literary theory thus exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection.
Literary theory also points to another legal problem regarding copyright protection for characters: to the extent that readers play an important role in receiving and construing characters, thus “mentally completing” them, perhaps such characters cannot be seen to have satisfied copyright’s fixation requirement. Recent case law exploring the fixation requirement supports the idea that a work that undergoes constant change after the artist has completed it may fail to clear the fixation threshold. In the case of characters, the text in which the characters appeared would receive protection, in its fixed textual form, and its characters, as embedded in the work as mere collections of words, would be protected as part of that text. But the particular role readers play in adopting and engaging with and changing characters would effectively bar protection for characters independently of their originating texts. Thus, characters would no longer receive independent copyright protection.
Part IV concludes by turning to alternatives the law might weigh in response to literature’s insights, and it provides a brief overview of the possibilities in both copyright and trademark. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection—dependent as reforms are on policy concerns endogenous to copyright—they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.