Spontaneous Musings

To a certain extent, creators have a copyright on their characters. If I'm writing a story about Harry Potter, for example, J.K. Rowling's copyright definitely comes into play. The case law on this is a bit murky, though. After all, in the 1954 case, Warner Bros. Pictures v. Columbia Broadcasting System, the Ninth Circuit ruled that CBS could continue to broadcast stories about Sam Spade even after Dashiell Hammett sold the rights to The Maltese Falcon and all of its characters to Warner Bros. The reasoning was that the test of whether a character is copyrighted is whether the character "constitutes the story being told." However, the fact that Warner Bros. and not Hammett was the plaintiff in this case was probably key. The court didn't want "the sale of the right to publish a copyrighted story [to] foreclose the author's use of its characters in subsequent works." That is to say, they didn't want the sale of The Maltese Falcon to result in the absurdity that any sequels Hammett himself wrote would infringe on a his original story. A later case, Anderson v. Stallone, held in part that the characters from the Rocky films were a copyrighted characters independent of the movies in which they appear.

On a practical level, Professor Tushnet notes that "the boundaries are really super fuzzy. So in general, when courts face an issue like that, they tend resolve them as matters of fair use. They just assume that there's copyrighted character and then analyze what is the fair use."

But what if the character I'm writing about is sort of Harry Potter, but sort of not Harry Potter? Well, in that case, we do have to look at your character and to what extent the character you're writing about constitutes the original story. Metro-Goldwyn-Mayer v. American Honda Motor Co. dealt with a Honda commercial featuring a James Bond-like character making a high-speed getaway. MGM claimed that the commercial infringed on its copyright on the Bond character as depicted in the films. The court noted that the Honda commercial, like the James Bond films, stars a handsome, tuxedo-wearing British-looking man with a gorgeous woman in tow who is on the run from grotesque villains. Beyond that, several visual elements appeared to have been directly lifted from individual Bond movies. The court explained, "In sum, the extrinsic ideas that are inherent parts of the James Bond films appear to be substantially similar to those in the Honda commercial."

The 1930 case Nichols v. Universal Pictures Corporation, with an opinion authored by the famed Second Circuit judge Learned Hand, held that no one may hold a copyright on stock characters. Rather, characters have to be "sufficiently delineated" in order to be copyrightable. (Says Hand, "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.") So a story about a pre-teen boy learning how to do magic at a boarding school won't necessarily infringe on a Harry Potter copyright. But where do we draw the line?

Professor Tushnet offered this analysis, noting that you can apply these tests to both a story's character and its setting. "It's all about the specifics," she explained. "So, the basic idea of having Starfleet, of course, is completely unprotectable. And having people who are sort of like the Chinese and people who are sort of like the Russians would again be completely unprotectable. The more you adopt from Star Trek specifically, the closer you get to infringement if it's not fair use." So it comes down to a question of what makes Harry Potter specifically Harry Potter and not just another boy wizard.