MGM v. Honda and copyrightability of characters.
The Sam Spade test makes it clear that characters are not copyrightable unless they constitute the story being told. Unfortunately the text does not go very far to explain what this means. What does it mean that the character is the story being told. The only reasonable clue and the one discriminator I am left to hang my hat on is this…people don’t watch Rocky, Tarzan, Bond or Sherlock Holmes for the story line but to watch their heroes in action. Is that the standard upon which we determine the copyrightability of characters? Need we bother considering uniqueness, originality, creative expression. The Spade test seems to require a series of episodes to create the ‘story being told’ characteristic of the character. Batman was a pretty unique character once, and certainly he is should fit the ‘story being’ told test but his characteristic attributes have become almost common. The dark night. The Hero with a dark side, battling his own internal demons as well as the demons of the world… The main character from “The Shield” saves the innocents but violates all sorts of laws and social conventions in the process. Spider man has been given a dark side, Superman has been given a dark side, Hell boy, The new character from TBS “Saving Grace” battling her internal demons while saving the world. How about Blade…we even have sympathetic vampires now. So Batman’s defining characteristic is not so unique any more, but it was once. Am I to understand, that now, since he so easily meets the Sam Spade test, Batman is copyrightable, but after his first issue, when he was still a unique, original and creative expression, since he was not yet the story, Batman was not protected? Is Cinderella the story being told, or is she a character in the story. Is Cinderella protected? Is Cinderfella? (a final reference obscure enough to impress Dennis Miller)
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September 27, 2007 at 2:10 pm |
Cinderfella was big in France, I think. About Batman, that last Batman movie, Batman Begins, was the story of Batman. More specifically, how Batman becomes Batman. Does this last incarnation of Batman pass the Sam Spade test? Is the story of Batman the same as a Batman story? Discuss amongst yourselves, but I don’t think so. I think that Batman is the story in Batman Begins and therfore it does not pass the Sam Spade test.
Chris Keegan
September 27, 2007 at 2:33 pm |
Yeah I can’t spell.
September 28, 2007 at 11:56 am |
The serials are necessary for copyrightable characters. The reasoning is analogous to the maxim of: there remains no original thought or ideas in the minds of man.” Given that this foundational principle is latent in copyright jurisprudence, it would also extend to the nuasance of protectability.
The characters, alone, cannot be copyright protected. The reasoning is that the characters are not original. Even if the originality or the uniqueness requirements are de minimis, no original character has been created in centuries. If the character could be independently copyrighted then the Mathew, Mark, and Paul would have a copyright in Jesus and every derivative work thereof (it would be in the public domain about now). So every “Jesus” character could not be copyrightable because the character is not original and the expression is in the public domain. Further, Jesus may not be copyrightable. He is the culmination of Prometheus, Atlas, Hercules and others. It is not illogical to conceptualize that even those characters are rip-offs. So if characters could be copyrighted then no new stories would be told. The fallout would be the retardation of “Progress.”
Heroes and anti-heroes are all expressions of the same idea but with some different attitude. The attitude or the varying dispositions should not be enough for protection. The story of the character and the compelling nature is based on the layers of the character. If you peel the layers away, most characters are the same. Batman, Spider-Man, Superman, and Jesus are all the same person…think about it…The package is different to reach different audiences.
Characters should be thought as ideas in the copyrightable sense. The character is the idea and the surrounding adventures or misadventures are the expressions. Therefore, without the surrounding storyline or surrounding universe ,the character is just an idea. The adventures are the expression of that idea. If Gotham is lacking then Batman is nothing. Homer did not copyright his characters, he coprighted the story as a whole.
A serial is not required. The character must be told in conjunction with a story. Don Quiote is enough for Dumas to have a copyright in the wayward hero. The character is protected in the sense in which the story is told. OR I am way off base…
September 30, 2007 at 10:32 am |
I think the difference is in the question why does the reasonable person go to see that movie? If they are going to see the movie, then the character is not protected. If they are going to see the character and themovie was built around that, then the character is protected. There have been times where the movie was just a story line and all the characters were part of it. But then something happened and it became a big hit and the reason was the character. I think almost every initial movie in a series has memorable charaters that would only constitute as ideas. But then almost every sequel is based around the characters. Examples: Die Hard, Clerks, Rush Hour, Austin Powers,etc. Each of these movies starte out as a storyline and eneded up being about the characters. The thing that makes them special and copyrightable is the unique character mix and continued presence in pop culture.
Penelope Barrett
October 4, 2007 at 1:53 pm |
“foundational principle is latent in copyright jurisprudence” aside. It is probably not good to talk about Jesus MY personal lord and savior who died on the cross for our sins and rose again three days later to judge the living and the dead so his kingdom will have no end. Because you may be left out. Be careful…
But for the most part I agree with Blevins:
The Spade Test seems logical. Most copyrightable characters that were previously mentioned are copyrightable because each had a different history or upbringing that made the characters who they are up to that point where the author starts reveling the story the characters play a part in. The Batman character becomes copyrightable when you as the reader find out that Bruce Wayne’s parents were killed by a mugger (who later reappears) and he falls down a well and see bats…Blah..Blah..Blah. The history of Batman Character is the important part, not what evil villian he is fighting or the inner demons the protagonist (In honor of the big words used in this thread) is battling at the time the author tells his story. How the audience relates to the existential idea of the protagonist/antagonist is irrelevant. The bar is met when through a story the author assigns the embodiment of values to a character. i.e. batman fights for Truth, Justice, and the American Way because…{at this point the copyright protection begins]
So says Sam Spade, so says
Jason Feldman
October 8, 2007 at 12:24 pm |
Okay, I could be wrong, but this is how, in my mind, I’ve tried to reduce this copyrightable character thing to its simplest form: You can create a character, let’s say a you create a cop or a superhero who is emotionally conflicted, or a inner city teen who dreams of one day being a bi hip-hop star, or a college athlete who aspires to the big time – not copyrightable. However, if that cop or superhero enjoys dressing in very specific colors, or enjoys going out in drag to fight crime; or that inner-city kid is also George Bush’s secret love child or that aspiring athlete has some kind of unique characteristic not common among his peers – then yes, copyrightable.
The caveat is however, that at some point in the future, IF and when a character with particular and distinct characteristics becomes so common place, that the reasonable observer can instantly recognize that “genre” of character, then it’s no longer copyrightable. (Does this make any sense at all?)
October 8, 2007 at 12:29 pm |
Clarification: I meant “big” hip-hop star, not “bi”.