From Jane Friedman:
Jack Ryan, the analytical, yet charming CIA analyst, made an appearance in federal court in Maryland earlier this year. The heirs to Tom Clancy’s literary legacy are fighting over him. Unlike in the movies, he’s not in a great position to fight back.
It all started when Clancy signed the publishing deal for The Hunt for Red October where Jack Ryan made his debut in 1984. In a departure from common practice, Clancy transferred his copyright in Red October to the publisher. A few years later, Clancy realized his mistake and was able to negotiate return of the copyright for the book. He immediately transferred the reverted copyright to his company.
Here’s the crux of the current court battle: When Clancy mistakenly transferred his copyright in the book Red October to the original publisher, did the copyright to the character Jack Ryan go with it? Or did Clancy retain the character copyright? In normal practice, the sale of the right to publish a copyrighted story does not stop the author from using its characters in future works.
If Clancy retained the rights to the character when he signed the initial publishing contract, then the rights that reverted from the publisher would not have included the copyright for the character. The reverted rights Clancy turned around and transferred into his company would not have included the character rights. All of which means that the character, Jack Ryan, is part of Clancy’s estate and not controlled by the company he set up.
Jack Ryan is a valuable character with his own copyright separate from the copyright in the book. Everybody concerned, the owners of the company and the heirs to the estate, wants a piece of him, or all of him. And it’s not clear where Mr. Ryan currently resides.
Fictional characters are not listed in the copyright statute as a separate class of protectable work. There’s no application at the Copyright Office for them. But over the years, the law on character protection has evolved.
. . . .
This is important because characters with independent copyright can be licensed separately from the stories in which they originally appeared. It’s another way for authors to divide their rights to create multiple income streams. That’s the beauty of copyright. It’s divisible. An author can keep some rights and license others. It’s what Clancy did and his company/estate is still doing with the Jack Ryan franchise.
Not every character can be protected by copyright. Stock characters cannot be protected—a drunken old bum, a slippery snake oil salesman, a hooker with a heart of gold, a wicked stepmother, a gypsy fortune teller, and so on. They are essentially ideas for characters, vague and lightly sketched. Copyright does not give anyone a monopoly on ideas. Protecting stock characters would prevent as yet untold stories from being told. Depriving the world of new stories is exactly the opposite of what copyright is intended to promote—the creation of more stories, more art.
. . . .
Public domain characters cannot be protected
But new characters created from public domain works can be protected. Consider Enola Holmes, the younger sister of Sherlock. The Sherlock Holmes stories have been slipping into the public domain for years now, to the chagrin of the estate of Arthur Conan Doyle. The creative elements of Sherlock Holmes stories that are in the public domain can be used by others to build new stories.
Enola Holmes was introduced to readers in a series of young adult books written by Nancy Springer. Enola does not exist in the Conan Doyle canon; she was created by Springer. She has distinctive traits (high intelligence, keen observational skills and insight, skills in archery, fencing, and martial arts, an independent thinker who defies Victorian norms for women) that combine to make her well delineated and protectable.
. . . .
The “well delineated character” is the most widely accepted legal test used to decide whether a fictional character is protected by copyright, but it is not the only one. The other is “the story being told” test. Sam Spade is responsible for this test.
Dashiell Hammett created Sam Spade when he wrote The Maltese Falcon. Hammett licensed the exclusive rights to use the book in movies, radio, and television to Warner Brothers. Hammett later wrote other stories with Sam Spade. Warner Bros. complained that it owned exclusive rights to the character and Hammett couldn’t write about him anymore.
Ironically, the court protected Hammett’s right as the creator to use Sam Spade in future stories by deciding that the character was not protected by copyright. Sam Spade is just a vehicle for telling the story and is not the story itself. He is the chessman in the game of telling the story. It was the story that was licensed to Warner Bros., not the chessman.
A character is protected under the “story being told” test when he dominates the story in a way that there would be no story without him. This test sets a high bar for character protection. To protect the character, the story would essentially have to be a character study. The Maltese Falcon is not a character study of Sam Spade.
An example of character protection using the “story being told test” is the Rocky franchise. A screenwriter wrote a story on spec using the characters Rocky, Adrian, Apollo Creed, and Paulie. The work was considered to be an infringing use of the characters. The characters were protected because the movies focused on the characters and their relationships, not on intricate plot or story lines. The characters were the story being told. The writer could not avoid the infringement touchpoint of substantial similarity when he took the characters and used them in a new storyline.
Link to the rest at Jane Friedman
PG is not entirely satisfied with the OP.
He’ll provide a couple of additional items to demonstrate that court cases aren’t quite as definitive as non-lawyers might conclude from reading the OP. After the lengthy excerpts below, PG will briefly share a couple of his practical thoughts way down at the end.
Copyright designs found weak when derived from common ideas
From Thompson Coburn LLP:
The well-known song says, “a kiss is just a kiss,” but the Ninth Circuit says that some kisses are “thin” and some are “broad,” and on that your copyright lawyer can rely. As time goes by.
The court got into analyzing kisses through a case, Sophia & Chloe v. Brighton Collectibles, involving designs of “Buddha’s Kiss” earrings. A Buddha’s Kiss earring has three elements: a teardrop-shaped earring, the henna symbol for the word “kiss,” and the image of the Buddha. As you might expect, the producer of one Buddha’s Kiss earring sued the producer of another, claiming copyright infringement.
Each of the parties’ earrings contained those three elements. But was that similarity enough to prove copyright infringement? The court said it wasn’t. Because every Buddha’s Kiss earring must contain those three elements, that means that the combination of those three elements is the “idea” of the earring. And copyright law does not protect ideas, but merely particular creative expressions of ideas.
Normally, two different creative expressions are analyzed under a “substantial similarity” test. But the Ninth Circuit held that because there were only a few ways to combine the three essential elements of a Buddha’s Kiss, infringement can be found only if the two designs are “virtually identical.”
Link to the rest at Thompson Coburn LLP
Basics of Copyright
From The Office of General Counsel, Harvard University:
What does copyright protect?
Copyright does not protect ideas, nor does it protect facts. It protects only the form in which ideas or facts are expressed. For example, you may read a copyrighted paper and appropriate its ideas, or facts it conveys, into your own work without violating the copyright. However, you may not reproduce the actual text of the paper (unless fair use or another exception to copyright protection applies), nor may you evade this prohibition simply by changing some words or thoroughly paraphrasing the content.
What does a copyright authorize the copyright owner to do, or to restrict others from doing?
Subject to certain limitations, a copyright owner has the exclusive right to:
- reproduce the work by making copies of it;
- distribute copies of the work to the public by sale, donation, rental, or lending;
- prepare new works derived from the original (for example, a novel adapted into a play, or a translation, or a musical arrangement); and
- publicly perform or display the work.
. . . .
What is “fair use”?
Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works. Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment.
What is the test for fair use?
The fair use defense is now codified in Section 107 of the Copyright Act. The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts. The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright. To determine whether a given use is fair use, the statute directs, one must consider the following four factors:
- the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine. The following questions consider each of these four factors in turn.
What considerations are relevant in applying the first fair use factor—the purpose and character of the use?
One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research. Other important considerations are whether the use is commercial or noncommercial and whether the use is “transformative.”
Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit-making.
In recent years, the courts have focused increasingly on whether the use in question is “transformative.” A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use. A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts. To quote the Supreme Court again, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
Courts have also recognized, however, that non-transformative uses may be socially beneficial, and that a use does not have to be transformative to support a finding of fair use. The Supreme Court has cited reproduction of multiple copies for classroom distribution as the most obvious example of a non-transformative use that may be permitted as fair use in appropriate circumstances. The Court’s emphasis on whether a use is transformative, however, makes it difficult to know how to weigh uses that are for non-profit educational purposes but are also non-transformative. In addition, it could be argued in some circumstances that verbatim copying of a work for classroom use is “transformative,” in that (to quote from the Court’s definition) the instructor is adding “something new, with a further purpose or different character, altering the first with new expression, meaning or message” in the course of presenting the material.
Other factors that sometimes weigh in the analysis of the first fair use factor include whether the use in question is a reasonable and customary practice and whether the putative fair user has acted in bad faith or denied credit to the author of the copyrighted work.
What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?
The two main considerations are whether the work is published or unpublished and how creative the work is. Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public. The fact that a previously published work is out of print may tend to favor fair use, since the work is not otherwise available.
Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works. This is in keeping with the general principle that copyright protects expression rather than ideas or facts.
However, the second factor is typically the least important of the fair use factors.
What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?
Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used. What percentage of the original work has been used? There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use.
Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use. Thus, for example, in a case in which The Nation magazine published excerpts, totaling only 300–400 words of verbatim quotes, from Gerald Ford’s forthcoming book-length memoir, the Supreme Court held that the third factor weighed against fair use, because the excerpts included Ford’s discussion of his pardon of Nixon and other central passages that the court found to be the “heart” of the work.
Also important in applying the third factor is the nexus between the purpose of the fair use and the portion of the copyrighted work taken. The extent of permissible copying varies with the purpose and character of the use. Taking more of the copyrighted work than is necessary to accomplish the fair user’s salutary purpose will weigh against fair use. In some cases, the fact that the entire work—for example, an image—was needed to accomplish the fair use purpose has led the court to hold that the third factor was neutral, favoring neither the copyright holder nor the putative fair user.
What considerations are relevant in applying the fourth fair use factor—the effect upon the potential market for or value of the copyrighted work?
Use that adversely affects the market for the copyrighted work is less likely to be a fair use. This ties back to the first factor, and the question whether the putative fair use supplants or substitutes for the copyrighted work. The fact that a use results in lost sales to the copyright owner will weigh against fair use. Moreover, courts have instructed that one must look at the likely impact on the market should the use in question become widespread; the fourth factor may weigh against fair use even if little market harm has yet occurred.
This inquiry is not confined to the market for the original, but also takes into account derivative markets. For example, if a novel were made into a movie, the movie might not harm sales of the book—indeed, it might help them—but the harm to the derivative market for movie rights would count against fair use. This principle works in a straightforward way in the case of well-established markets, like the market for movie rights for a novel. But it becomes much more difficult to apply if there is not an established market. Consistent with the statutory language, courts have also looked at whether there is harm to a “potential market” for the copyrighted work. However, if there were deemed to be a “potential market” for every use asserted to be a fair use, then the fourth factor would always favor the copyright owner, since the copyright owner would be harmed by loss of the licensing fee for that use. One way courts have tried to avoid this circularity is by asking whether a market, if not already established, is “reasonable” or likely to be developed by copyright owners. In keeping with this approach, courts have concluded that there is no protectible market for criticism or parody, but have considered evidence of harm to markets under development or viewed as attractive opportunities for copyright owners, such as the market for downloads of songs. In some cases, courts have indicated that the absence of a workable market will tend to favor the fair user on the fourth factor because there is no efficient means to buy permission for the use in question.
This is a difficult and evolving area of the law. We can nevertheless venture a few generalizations: Uses that substitute for the copyrighted work in its original market or an established derivative market generally cause market harm that is cognizable under the fourth factor. Where there is no established market, harm is less likely to be found, but still may be found depending on the facts, especially if the fair use case under the other factors is weak and the “market” in question is under development by copyright owners or obviously attractive commercially. In any case, the Supreme Court has said, market harm is a matter of degree, and the importance of the fourth factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.
How should one weigh the various factors in arriving at a determination whether there is fair use?
The fair use test requires an assessment of all the factors together. The courts have repeatedly emphasized that there are no bright line rules, and that each case must be decided on its own facts. The factors often interact in the analysis. For example, the Supreme Court has stated that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The more transformative the secondary use, the less likely it is that the secondary use will substitute for the original and cause direct market harm. In reaching a fair use determination, all of the factors should be explored, and the results weighed together, in light of the goal of copyright law to “promote the progress of science and useful arts” (U.S. Const., art. I, § 8, cl. 8).[3]
To understand better how courts have applied the fair use test in different situations, you may find useful the summaries of selected fair use cases at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html. In addition, the U.S. Copyright Office maintains a Fair Use Index, which offers a searchable database of selected judicial decisions involving fair use, together with brief summaries: http://copyright.gov/fair-use/.
Link to the rest at The Office of General Counsel, Harvard University
PG’s Thoughts
PG will note that the General Counsel of Harvard, like a great many other general counsels, almost certainly prefers a quiet life to one filled with ground-breaking copyright infringement lawsuits.
PG’s bottom line on the subject of the OP is that it uses a couple of cases he regards as outliers to support a conclusion that PG thinks is presented as a more settled matter of law than it actually is.
From a practical standpoint for a non-multi-millionaire author, here are a few thoughts.
Lawyers (or some lawyers) have a general rule that some call the “Pig Test.”
Basically, the Pig Test says don’t try to push right up to the very edge of the boundary between being sued and a quiet life. Don’t try to eat too much in that part of the legal and ethical world.
Don’t call your character Jack Ryan unless he’s an elf who lives in a magical wood filled with fairies and unicorns. Don’t call him Frodo if he does.
Don’t call your character Jane Ryan if she works for the CIA and engages in international intrigue to defeat the former Soviet Union or the Chinese Communists.
Don’t paraphrase paragraphs of action sequences in a book with the assistance of a Thesaurus.
The wealthier the author and the more books she/he has sold, the more cautious you should be about even permissible borrowing of details, settings, characters, etc. Ms. Rowling has publishers, agents, lawyers, readers, etc., looking for that sort of thing.
For most authors, just being sued is more punishment in both the financial and massive distraction arenas than is good for their creative output, even if they eventually prevail in court.
What are the odds if he did his first deal with a large publisher and wanted his rights back he’d have been able to get them back so easily? The joys of publishing with a non profit organization instead of a large publisher. I’m sure like many of the readers here I grab as many of their books as I can since between them and Seaforth Publishing (across the pond) you’ll easily scratch that naval history itch that I know we all have 🙂
Have you noticed that they are republishing “Russian and Soviet Battleships” by Stephen McLaughlin this autumn. It’s not going to be cheap but, given that someone is asking nearly £1,500 for a used hardback on amazon.co.uk and the copies on AbeBooks are all at £1,000+, it will still be a bargain.
I also second your recommendation for Seafoth (in fact almost anything from Pen & Sword is worthwhile if your interest in history extends to the dryland or the sky).
This reminds me of the catfight over ARMAGEDDON 2419 and Anthony Rogers/Buck Rogers. The seminal story is unmistakeably PD. But whether anybody can do anything with the characters was mired in court over the derivatives (newspaper strip, movieS, serials, TV) and re-interpretations in comics. Allegedly settled in 2020 but the way things has run I’m skeptical:
https://en.wikipedia.org/wiki/Buck_Rogers
Which is too sad because a series/movie faithful to the seminal narrative would be seriously topical these days. 😀
Felix, the Buck Rogers fight is actually far more about the validity of the purported “work for hire” provision of the publishing contract than it is about “characters.” Of course, this was at a time when the Copyright Act didn’t acknowledge work for hire at all — under the 1909 Act, work for hire was entirely a judge-made doctrine. That necessarily referred to state law of respective states regarding what constituted “employment” or “a commission,” etc.
That is what the Dille trust pretended.
That is not what the judge ruled.
The Murphy group position was that the Buck Rogers published in Dille productions is not the Anthony Rogers of the novel and that the Dille didn’t actually do anything substantial with the original story so there could be no infringement if they only adapted the original story.
Putting it in context with the OP: Murphy planned to adapt a PD novel about John Ryan hardboiled Private Eye that the Dilles had transformed into Jack Ryan superspy.
What caught my eye about the case is the irony that not only did tbe Dille group not use anything from the novel but a couple of character names and variants thereof, but tbey actually licensed the wrong property to start with. The Dilles licensed thinking the magazine cover was reflective of Armaggedon, when the cover was based on the *other* seminal story in that issue (THE SKYLARK OF SPACE). They thought they were licensing a light space adventure but actually bought one of tbe earliest hardcore military SF stories of the century. Makes their claims on the original look pretty specious and tbe judge apparently agreed.
The Murphy production had nothing to do with the strip and derivatives, only the copyrighted original material, now in tbe PD, so whatever the Dille’s hired done would be irrelevant. It’s like Disney suing somebody doing a faithful adaptation of Anderson’s Little Mermaid. And not even the House of Mouse would dare go there.
Reading between tbe lines, any out of court settlement looks to have been for the Buck Rogers trademark. If that.
Felix, it’s PD only due to confusion over the WFH contract and who had the right/ability to register (and, later, to renew). And it gets much, much more complicated from there, as you note regarding the cover-art issues!
Well no one filed renewals on the novellas from Amazing. The owners of Amazing didn’t file renewals for the magazines the novellas were in either. I’m not sure how that can be construed as confusion over who had the right to file.
Amazing’s contracts claimed WFH. There was even a question as to what that meant, since Amazing’s owners at the time renewal came due weren’t in the Second Circuit (hint: who were they? did they even exist?), and then there’s the Morris problem on top of that regarding the scope of registration in issues of periodicals!
“Confusion” is the nice word; I’d ordinarily use a hyphenated military term that begins with “cluster-” for this sort of thing. My point is that the starting point (but not all of the confusion!) is the WFH contract for publication that misled everybody thereafter, not that WFH is a complete explanation.
OK, thanks. It makes sense now.
It wasn’t just Amazing that was playing games with claiming WFH. I’ve ran into it on many of these pulp magazines. I’ve been told that Astounding didn’t when I talked to Abigail Browning a few years ago. More than 10 years ago now it looks like.
I find USA copyright a lot more confusing than that in the UK. I take it that you are saying that, had it been a WFH and had it been renewed, the original novella would have been in copyright until 2023, but as a normal literary work with renewal the copyright would end in 2010? Or is this a case where those odd USA rules apply giving copyright – as long as renewed – until 2023 even if it’s not aWFH?
I have to admit that, despite everything that has been written above, I’m still not sure whether, once the first work has gone out of copyright, I could freely write and sell fan-fiction using a character even though the character had been used in later works that are still in copyright (which I think can happen in the USA for older works even if they are by the same author).
Merely confusing would be a considerable improvement. The textbook answer is that the first Buck Rogers novella (“Armageddon 2419”) would, if properly renewed, have a copyright expiring on either 01 Jan 2024 or 01 Jan 2025, depending on the exact date of its effective registration (it was a late-in-the-year magazine issue). The second novella should expire 01 Jan 2025. The later fix-up novel combining the two with some editorial changes probably expires on 01 Jan 2064, or within a couple of years either way of that. The comics, the radio and film serials, the TV episodes… that’s another story entirely, probably longer than either of the novellas and still not reaching a definitive conclusion. (And probably not nearly as well written, which isn’t even complimentary enough to be “damning with faint praise.”)
But it’s much more complicated than that. Thank a Frenchman (Victor Hugo); one of my other law-academia interests is the relationship among economic class of “creators,” the source of wealth of those “creators,” and the expression of all of that in intellectual property (and related) law, and Hugo’s obsession with creating an aristocracy of the word ran into resistance in the US Constitution. Things have only gotten more bizarre since. It became an issue because Hugo wanted to impose his French-culture-specific understandings of “what it is to be a writer” on the entire world.
I only wish, though, that calculating a putative public-domain date was as easy as Mike’s post makes it sound. The actual mechanism would look something like this:
US works registered for copyright before 01 Jan 1960 had to be renewed exactly 28 years after the registration date (they did not get the benefit of “all copyrights expire on 31 Dec” for timeliness of renewal, although they did for the actual term of copyright). For registration dates from 01 Jan 1960 through 31 Mar 1964, they could. After 31 Mar 1964, because of US accession to the Berne Convention in 1988 and statutory implementation of that, the renewals became optional.
But that’s just the first third of the inquiry. Renewals can be performed only by certain persons or entities, and this is primarily a matter of determining which version of the Copyright Office’s regulations were in effect at the time renewal was due (not at the time of registration).* For the Buck Rogers novellas, because the face of the contract declared work for hire, only the hiring party had authority to renew.
But when renewal came due, there was no entity or person that was a clear successor in interest to the actual purported hiring party. (This was thanks to various incompetence, shenanigans, poor record-keeping, and unclear law. There’s plenty of blame to go around.) So what happens then? Surely the law, or the statutes, had a solution? Umm, not so much; it was an unconsidered issue in the statute, and a never-resolved issue in the regulations. The “right and just” solution, if you believe Hugo’s claptrap, would have been to “snap back” the renewal right to the actual natural-person author and/or heir(s) at the moment it became clear that the hiring party and/or its successors in interest had “abandoned” the property. Which, of course, requires recognizing all of that, and having notice, and having awareness that there’s a deadline involved, but…
A renewal application by a party that is not eligible to renew is void, even if mistakenly granted.
So, then, let’s assume that somehow or another, a proper party had applied to renew the registrations in 1956 and 1957. Those renewals would, on their faces, have extended the copyright term to 1984 and 1985, right? At which point the 1976 Act’s term extensions come into play, right? And then things get even more interesting, at least in the abstract, because the starting point for the term of copyright for a work made for hire is not its actual effective registration date, but the date of the transferring document… and because of that exact-date nonsense relating to WFH under the 1909 Act, that can get interesting.
Now throw in the Morris problem: Even for a WFH, does the publisher’s registration of the entire issue of a serial also register each work in that issue? If your head isn’t spinning yet, the world is. (The Second Circuit, and the then-Register of Copyright who was a captive of H’wood, said “no.” That has been undermined, but not overturned, by two later Supreme Court opinions, but remains the law in the Second Circuit, which includes New York City — but not Pennsylvania, where author Philip Nowlan lived.)
* It appears that the two Buck Rogers novellas published in Amazing would have fallen under different regulation sets, had they been timely registered and therefore in their renewal-application windows based on that timely registration… but reliable, searchable records for that period online only disclose the year of registration, not the exact date. I’m definitely saving this for an exam question…
The only confusion was intentional.
(This was the age of “payment upon lawsuit” after all.)
Gernsback was scum.
The stories were all written on spec, not commisioned.
Whatever the papers said, there was no meeting of the minds. And, as a point of fact, all the pulps ever bought was first world publishing rights. They knew better.
Besides, it wasn’t Amazing’s descendants claiming copyright but the Dilles and they were claiming it on the Buck Rogers character. They knew tbey had no claim on the story.
The whole thing would’ve been meaningless–just two hollywood sharks fighting over chum, a project that was never going anywhere and still isn’t–if it weren’t over the irony of the sharks fighting over something neither owned. By now the Buck Rogers franchise has been superceded by newer and more sophisticated franchises. There might be some value in the original story but its been half a century since anything Buck Rogers amounted to much. And tbat was “Wiliam” Rogers, an astronaut, not Anthony, a WWI soldier. The world has moved on.
(Shrug.)
Me too, now that the judge made his ruling.
Speaking of Hollywood, I had the pleasure of interviewing Buster Crabbe once at Musso & Frank’s in the late ’70s. It was long past his Buck Rogers and Flash Gordon days, but he looked great. And as a swimmer, it was a real treat to meet him in person.
You’re correct that the stories were written on spec. But:
Under the judge-made WFH doctrine of the 1909 Act — and especially in the 1920s and early 1930s — a “commission” as we now understand it was not an element of the WFH analysis. “Write something for me, and I’ll consider it” was enough, especially in New York… plus, the statute of limitations to challenge the WFH designation expired before just about anyone reading these words was born.
And that’s the easy instance — New York law for simple textual works. Do not get me started on component works, like musical compositions and screenplays and such; do not get me started on racial and gender and religious and national-origin discrimination in contracts offered, in this era when racially-restrictive covenants in both real-estate deeds and real-estate contracts were common and enforceable (A Raisin in the Sun is a thin dramatization of a true story, see Hanberry v. Lee, 311 U.S. 32 (1940)), let alone the class distinctions in what terms were offered to whom (or, for film productions, whether any “contract” was offered as all).
WFH contracts didn’t cause everything that later went wrong with Buck Rogers. They set the stage for it. And they continue to do so today; consider all of those Star Wars and Star Trek novels written with WFH contracts when, under the terms of the 1976 Act, a book-length work of fiction is not eligible subject matter to be treated as WFH unless authored by a statutory employee within the scope of the employee’s ordinary duties. I personally know of at least five of those works for which the author didn’t file a revocation/termination notice under § 203 because the contract was wrongly labelled “work for hire,” and the authors have now lost the right to do so (it’s too late).
NOW I’m confused – I never thought about copyrighting my characters separately from my novels.
Are you saying that if my characters are deeply individual, I should be safe from copycats?
Or that I should copyright my main characters so I’m the only one who can write stories about them?
Is there even a process for copyrighting a fictional character? Or is that exactly what Disney does, and you’d better not name a dwarf in your book ‘Sneezy’ – or be prepared for the wrath of Disney to descend on you?
I registered my novel and series with the Library of Congress to make sure if there was ever a question, I had proof (and indeed, when Amazon asked me to prove I owned the rights, I just sent them a copy of the registration – saved an incredible amount of time and effort). But this idea just ‘slapped me upside the head.’
There’s a terminology issue here, brought on by the confusion of the 1976 Act. Which only became effective 43 years ago, so we shouldn’t expect the entertainment industry to have reformed its practices and vocabulary yet; it’s about two decades too soon. (There was terminology from the 1870 Act still appearing in publishing contracts in 1973, even though the 1909 Act had made it obsolete.)
You “copyright your characters” under the 1976 Act by putting them in a fixed form. On paper, electrons, audiotape, scratchings on the top of a wooden table in a dive bar about 2 hours west of Nashville — all are valid (and all have been entered into evidence in federal copyright trials since 1997).
Unlike under the 1909 Act, that is not the same thing as registration. Under the 1909 Act, there was no copyright without registration. Under the 1976 Act, registration is a prerequisite to enforcement of a copyright in court… most of the time. But it is not a prerequisite to asserting that copyright, or sending a cease-and-desist letter to a website that has posted your entire story without permission, or (to the point here) objecting to a piece of fan fiction that starts a “continuation novel” using one of your characters and turns it into snuff porn. (Again, these are all real examples.)
You cannot separately register the copyright in a character. Copyright exists only in the “fixed expression” of that character. Any claim or suit for infringement of just that character derives from the “fixed expression,” not from the character him/her/it/themself(ves). This is why high-falutin’ literary theory and analysis of “allusion” matters and points more toward trademark than copyright… but civil procedure, including both the burdens of proof (and evidence) for showing liability and the remedies available, pushes everyone toward copyright.
So, the tl;dr version: So long as you’ve registered the copyright(s) in the work(s) in which the character appears, you need make no further registration (and the Copyright Office wouldn’t let you anyway). It’s then a matter for the lawyers to argue over.
Many thanks, C.E.
My characters are very much fixed in the work by all kinds of different details, from internal monologue to their words and history. Until my copyright expires, by which time I probably won’t care, though my heirs might.
This shark is much more skeptical of both the OP and the “received wisdom” on copyright in characters than is PG.* Very sketchily indeed:
The vast majority of the jurisprudence on “copyright in characters” is either directly from the period of copyright indivisibility, or continues to cite that jurisprudence as if neither the 1976 Act’s statutory provisions or US accession to the Berne Convention in 1988 could possibly have any effect at all. Conceptually, this is the equivalent of judging all “fair voting” provisions as if all that is at issue is the Constitution as it existed at the founding — ignoring both the amendments to that document and the statutory and judicial changes since the 1780s. Perhaps the best example of this is the “transformative use” test itself, which depends almost entirely for its underpinnings on a series of fights over derivative works in the 1940s through 1960s in New York in which the actual creators of the source works were not involved.
The more high-falutin’ jurisprudential problem, though, is that copyright isn’t always the right legal framework to resolve these matters. Characters from work X that are imported into work Y depend upon both “copying” and “allusion” — and the latter is a trademark-like theory/framework, not a copyright-like theory/framework. Further, focusing exclusively on copyright fails to acknowledge that “process” (which leads to “originality” in the copyright sense) is not the same thing as “product” (which leads to copying in the copyright sense).
One example of where this argument goes inevitably wrong is in trying to figure out how to treat fan fiction (warning: no conclusion is actually reached, which is itself the conclusion… and it’s only gotten worse in the decade and a half since then) (keep in mind, too, that that essay was intended primarily for a nonlawyer audience, so it glosses over a lot of doctrinal subtleties and outright errors). My main objection, though, is that almost never are these creator-versus-creator arguments; they are almost always creator-versus-transferee or transferee-versus-transferee arguments. And the latter ends up looking like a Mad Magazine “Spy versus Spy” cartoon all too often… in addition to failing to consider the actual, constitutional purpose of copyright, which is to promote progress in the useful arts and sciences.
* The tens-of-thousands of words in academic-oriented pieces supporting this extremely short summary are a promise. The accompanying footnotes… are a threat.