Re: Character protection (Was: Lolita's copyright)

On 10/15/98, Daniel J. Schaeffer <daniel_schaeffer[_at_]kirkland.com> wrote:
>
> This gets into the tricky area of character protection more than
> anything else. Somebody made up the character of Kramer on "Seinfeld,"
> for instance. But what is copyrightable about the character? The idea
> of a wacky neighbor? Hardly. The idea of a wacky neighbor with wild
> hair, crazy get-rich-quick schemes and an unusual sense of personal
> space? I doubt it. Clearly the expression of those ideas is protectable
> -- but which expression? The visual/performance expression by Michael
> Richards, the written expression by the script writers, a description
> in a treatment by Jerry Seinfeld and Larry David -- what? What about
> characters like James Bond -- which expression of the character is
> copyright-protected: Sean Connery's, Roger Moore's, Timothy Dalton's,
> Pierce Brosnan's, George Lazenby's or -- why not? -- Woody Allen's?

As a practical matter, it may not matter, since both the scripts and the performances are usually owned by the producer of the show. But my understanding of the "character protection" cases is that the character is protected both in its literary form (as a script) and in its audiovisual form (as a combination of the script and the fixed performance of that script). Moreover, a court will protect a character who is embodied in a combination of books, scripts and/or movies. Thus, James Bond is protected in each of his various incarnations, individually and in combination.

> The interesting thing about characters is that they also function in
> some sense as trademarks -- they identify, to some degree, the source
> of the character's exploits. Mickey Mouse = Disney; Sherlock Holmes =
> Sir Arthur Conan Doyle; Kramer = Seinfeld.

True. Trademark liability, if any, will be determined independently of copyright liability (although they often go together).

> If I write a story about Kramer that involves no plot or dialogue from
> any "Seinfeld" show, have I made a derivative work of the show? Have I
> made a derivative work of Kramer? What am I infringing? What if I make
> a TV show with a wacky neighbor with wild hair, crazy get-rich-quick
> schemes and an unusual sense of personal space, name him Kramer, but
> make him 5'5" and portly? Is he the same character, a derivative, or
> what?

Philosophically, this is an interesting question. Certainly the "character protection" cases are not very well reasoned or explained. As a practical matter, however, a court will undoubtedly find that you are infringing. You will be deemed to have made a derivative work of one or more episodes of the show. If you change his physical attributes, it might be deemed to be a derivative work; but the more likely cause of action is one for either unfair competition [Section 43(a)] or dilution.

What is really going on is that the court is determined to punish what it deems to be unjust enrichment or misappropriation, even though if you tried to bring those causes of action directly under state law, they would be preempted. Federal IP laws are used to punish unjust enrichment all the time, even though the rationales underlying those laws are based on other theories.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Sat Oct 17 1998 - 02:07:50 GMT