Re: Cameo Roles (Was: Lolita's copyright)

On 10/15/98, Robert Joseph Honan <robertus[_at_]harbornet.com> wrote:
>
> How about a hypothetical with a slightly different set of facts.
> Let's say that I write a novel about a group of travelors stuck on a
> train somewhere. To pass the time, the passengers share some important
> background story about themselves. And amongst the many [tales] related
> is Nabokov's Lolita telling the story from her perspective. And for
> this hypo. let's say that her story amounted to a cameo appearence in
> the book, say ~20 pages out of a 400 page novel, and only one of eight
> or ten stories told.

This sounds like a hypo based on Learned Hand's "levels of abstraction" analysis. He posited that with any given work, one could tell the same story at increasing levels of abstraction (generality), until one ended up with only a sentence describing the basic outline of the novel. Copying at the most concrete level (literal copying of text) was clearly infringement, and copying at the highest level of abstraction was clearly copying only the idea and not expression. The trick is to find the dividing line in the middle. Here, Hand is less helpful, since he says only that there must be a line, and that the inquiry is inherently fact-specific.

The essential question is: what do we think is the appropriate scope of the derivative work right? Most people would probably agree that a movie based on Lolita belongs within the derivative work right. What if the author of "Lo's Diary" wants to create a movie of his/her novel? Wouldn't that be telling essentially the same story? Looks like an infringement to me. As for your hypo, in which the same story is shortened to 20 pages? I think it is likely that it would deemed to be sufficiently specific to be held an infringement. [I am not bothered by this result in the abstract, but I am bothered by it in a world in which copyrights last 95 years instead of 56 or less.]

The fact that the shortened story is only one of eight or ten stories (and only 20 pages of 400) will not save it. Courts have consistently held that "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." [Learned Hand, again] Although I think that this is one of the two most frequently misused (and therefore pernicious) quotes in U.S. copyright law, it nonetheless is so well-established that it would almost certainly be accepted without question by a U.S. court.

[Since someone is bound to ask: the other most frequently misused quote is Holmes' observation in Bleistein that "Others are free to copy the original. They are not free to copy the copy." In context, the statement is correct; but when taken out of context, it is clearly incorrect. But that's another thread.]

> Next step, still clearly Nabokov's Lolita from the story, but we
> change the charactor's name. Foul?

Changing the name(s) will help, because it increases the degree of abstraction, and hence the distance from the original. At some point, telling a story about two pedophiles and a nymphet and her mother will not be considered an infringement. But if it is still recognizable as "Lolita," rather than merely another variation on the "idea" then it will be considered an infringement.

Again, I'm not bothered by this broad notion of the scope of a derivative work if the copyright term is short enough that other authors can use the original in this manner within a reasonable amount of time. But with copyright term extension, I am inclined to think that the scope of protection should be narrowed.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Oct 19 1998 - 19:46:19 GMT