1. 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.

2. Characters and Derivative Works n Key Questions u What are we doing when we focus on the question of the copyrightability of characters? u What (incremental) work would that construct do relative to our derivative works rules? September 17, 2015Copyright © 2005-10 Randal C. Picker2

3. Characters and Derivative Works u 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? September 17, 2015Copyright © 2005-10 Randal C. Picker3

4. Start Here n www.fanfiction.net www.fanfiction.net September 17, 2015Copyright © 2005-10 Randal C. Picker4

5. September 17, 2015Copyright © 2005-10 Randal C. Picker5 Owning Characters n Nichols (2 nd Cir. 1930) (Learned Hand) u The Specificity Test w “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.”

6. September 17, 2015Copyright © 2005-10 Randal C. Picker6 Hand’s Characters n Malvolio u Protected but not a “vain and foppish steward who became amorous of his mistress” u Sparknotes on Malvolio w “The straitlaced steward—or head servant—in the household of Lady Olivia. Malvolio is very efficient but also very self- righteous, 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.”

7. September 17, 2015Copyright © 2005-10 Randal C. Picker7 Warner Brothers (9 th Cir. 1954) n Core Facts u Hammett authors The Maltese Falcon (TMF) u It is published in serial form by Pro- Distributors Corporation (PDC) u PDC copyrights TMF u PDC assigns the copyright in TMF to Knopf

8. September 17, 2015Copyright © 2005-10 Randal C. Picker8 Warner Brothers u Hammett and Knopf enter into contract with Warner Bros. u Knopf does limited assignment of certain aspects of copyright to Warner Bros. u Warner sues CBS for copyright infringement when Hammett contracts with CBS regarding the use of the character Sam Spade

9. September 17, 2015Copyright © 2005-10 Randal C. Picker9 9 th Circuit Analysis n Contract u Characters not specifically referenced u Authors routinely use characters again, especially detective stories (Sherlock Holmes) u Interpret contract against sophisticated party like Warner Bros.

10. September 17, 2015Copyright © 2005-10 Randal C. Picker10 9 th Circuit Analysis n Copyright u “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.”

11. September 17, 2015Copyright © 2005-10 Randal C. Picker11 9 th Circuit Analysis u “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.”

12. September 17, 2015Copyright © 2005-10 Randal C. Picker12 Framing This n Prior to 1976 u Prior to Publication w Hammett has state law rights in The Maltese Falcon as story and whatever rights attached in characters, such as Sam Spade u After Publication w PDC and then Knopf have copyright in TMF

13. September 17, 2015Copyright © 2005-10 Randal C. Picker13 Framing This u As to characters, 9 th Circuit holds not copyrightable u This means w Not that characters enter public domain, but that characters remain outside of federal copyright and inside the state law system for protecting works w Hammett retains control over characters

14. September 17, 2015Copyright © 2005-10 Randal C. Picker14 Warner Bros. Now n After 1976 u 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

15. September 17, 2015Copyright © 2005-10 Randal C. Picker15 Anderson v. Stallone n Core Facts u Sly Stallone is Rocky: plays the character in three movies, authors the script for each one u May 82: Discusses potential plot for Rocky IV in public u June 82: Anderson sees Rocky III, authors script for potential Rocky IV, using characters from movies

16. September 17, 2015Copyright © 2005-10 Randal C. Picker16 Anderson v. Stallone u Anderson has some sort of contact with people high up at MGM u Stallone makes Rocky IV u Anderson sues for copyright infringement of his script

17. September 17, 2015Copyright © 2005-10 Randal C. Picker17 103(a)’s Penalty Regime n (a) u 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.

18. September 17, 2015Copyright © 2005-10 Randal C. Picker18 Key Questions n Does Stallone have a separately protectable interest in the Rocky character? n What lines separates the protectable from the unprotectable? n Is this different from our regime for famous trademarks?

19. September 17, 2015Copyright © 2005-10 Randal C. Picker19 Gaiman v. McFarlane: Text v. Pictures n 360 F.3d 655 (7 th Cir. 2004) n Core Facts u McFarlane invites four writers to help create scripts for issue of Spawn u Not done as work made for hire u Gaiman text creates three new “characters” illustrated by McFarlane n Are the characters copyrightable?

20. September 17, 2015Copyright © 2005-10 Randal C. Picker20 [Spawn]

21. September 17, 2015Copyright © 2005-10 Randal C. Picker21 Spawn No. 9

22. September 17, 2015Copyright © 2005-10 Randal C. Picker22 Count Cogliostro

23. September 17, 2015Copyright © 2005-10 Randal C. Picker23 Medieval Spawn

24. September 17, 2015Copyright © 2005-10 Randal C. Picker24 The Test in McFarlane? n Says the Court u “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.” n Text vs. Pictures? n Note that this is a joint authorship case