Class 6
Copyright, Winter, 2010
Characters
Randal C. Picker
Leffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/r-picker@uchicago.edu
Copyright © 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?
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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?
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Start Here

www.fanfiction.net
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Owning Characters

Nichols (2nd Cir. 1930) (Learned Hand)
The

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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.”
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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 selfrighteous, 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.”
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Warner Brothers (9th Cir.
1954)

Core Facts
Hammett
authors The Maltese Falcon
(TMF)
It is published in serial form by ProDistributors Corporation (PDC)
PDC copyrights TMF
PDC assigns the copyright in TMF to Knopf
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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
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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.
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9th Circuit Analysis

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.”
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9th Circuit Analysis
“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.”
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Framing This

Prior to 1976
Prior

Hammett has state law rights in The Maltese
Falcon as story and whatever rights
attached in characters, such as Sam Spade
After

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to Publication
Publication
PDC and then Knopf have copyright in TMF
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Framing This
to characters, 9th Circuit holds not
copyrightable
This means
As
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

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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
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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
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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
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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.
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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?
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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?
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[Spawn]
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Spawn No. 9
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Count
Cogliostro
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Medieval
Spawn
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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
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