Today’s post is from intellectual property attorney Kathryn Goldman (@KathrynGoldman) of the Creative Law Center.
Jack Ryan, the analytical, yet charming CIA analyst, made an appearance in federal court in Maryland earlier this year. The heirs to Tom Clancy’s literary legacy are fighting over him. Unlike in the movies, he’s not in a great position to fight back.
It all started when Clancy signed the publishing deal for The Hunt for Red October where Jack Ryan made his debut in 1984. In a departure from common practice, Clancy transferred his copyright in Red October to the publisher. A few years later, Clancy realized his mistake and was able to negotiate return of the copyright for the book. He immediately transferred the reverted copyright to his company.
Here’s the crux of the current court battle: When Clancy mistakenly transferred his copyright in the book Red October to the original publisher, did the copyright to the character Jack Ryan go with it? Or did Clancy retain the character copyright? In normal practice, the sale of the right to publish a copyrighted story does not stop the author from using its characters in future works.
If Clancy retained the rights to the character when he signed the initial publishing contract, then the rights that reverted from the publisher would not have included the copyright for the character. The reverted rights Clancy turned around and transferred into his company would not have included the character rights. All of which means that the character, Jack Ryan, is part of Clancy’s estate and not controlled by the company he set up.
Jack Ryan is a valuable character with his own copyright separate from the copyright in the book. Everybody concerned, the owners of the company and the heirs to the estate, wants a piece of him, or all of him. And it’s not clear where Mr. Ryan currently resides.
Fictional characters are not listed in the copyright statute as a separate class of protectable work. There’s no application at the Copyright Office for them. But over the years, the law on character protection has evolved.
Courts have held, in certain circumstances, that fictional characters are protectable in their own right.
This is important because characters with independent copyright can be licensed separately from the stories in which they originally appeared. It’s another way for authors to divide their rights to create multiple income streams. That’s the beauty of copyright. It’s divisible. An author can keep some rights and license others. It’s what Clancy did and his company/estate is still doing with the Jack Ryan franchise.
Not every character can be protected by copyright. Stock characters cannot be protected—a drunken old bum, a slippery snake oil salesman, a hooker with a heart of gold, a wicked stepmother, a gypsy fortune teller, and so on. They are essentially ideas for characters, vague and lightly sketched. Copyright does not give anyone a monopoly on ideas. Protecting stock characters would prevent as yet untold stories from being told. Depriving the world of new stories is exactly the opposite of what copyright is intended to promote—the creation of more stories, more art.
A character must be well delineated to be protected.
It must have consistent and identifiable character traits and attributes so it is recognizable wherever it appears. Think James Bond and his distinctive character traits: his cool demeanor; his overt sexuality; his love of martinis “shaken, not stirred”; his marksmanship; his “license to kill”; his physical strength; and his sophistication. Bond is protected by copyright. The Bond character is identifiable regardless of who depicts him.
Defining the well-delineated character can be difficult. Characters that are central to a story tend to change. They evolve. They are built up throughout the book until they are fully formed in the mind of the reader. Without character transformation there is no hero’s journey, no story. Characters can become more delineated and more protectable over the course of a series of books. Bond developed over the course of 14 books written by Ian Fleming and continues to develop on film.
Characters that are less developed are less likely to be protected. Those characters are less expression and more idea. There’s a gray area that needs to be navigated when balancing the protection for original characters but leaving character ideas in the public domain free for all to use.
Public domain characters cannot be protected
But new characters created from public domain works can be protected. Consider Enola Holmes, the younger sister of Sherlock. The Sherlock Holmes stories have been slipping into the public domain for years now, to the chagrin of the estate of Arthur Conan Doyle. The creative elements of Sherlock Holmes stories that are in the public domain can be used by others to build new stories.
Enola Holmes was introduced to readers in a series of young adult books written by Nancy Springer. Enola does not exist in the Conan Doyle canon; she was created by Springer. She has distinctive traits (high intelligence, keen observational skills and insight, skills in archery, fencing, and martial arts, an independent thinker who defies Victorian norms for women) that combine to make her well delineated and protectable.
Another wrinkle: “The story being told” test
The “well delineated character” is the most widely accepted legal test used to decide whether a fictional character is protected by copyright, but it is not the only one. The other is “the story being told” test. Sam Spade is responsible for this test.
Dashiell Hammett created Sam Spade when he wrote The Maltese Falcon. Hammett licensed the exclusive rights to use the book in movies, radio, and television to Warner Brothers. Hammett later wrote other stories with Sam Spade. Warner Bros. complained that it owned exclusive rights to the character and Hammett couldn’t write about him anymore.
Ironically, the court protected Hammett’s right as the creator to use Sam Spade in future stories by deciding that the character was not protected by copyright. Sam Spade is just a vehicle for telling the story and is not the story itself. He is the chessman in the game of telling the story. It was the story that was licensed to Warner Bros., not the chessman.
A character is protected under the “story being told” test when he dominates the story in a way that there would be no story without him. This test sets a high bar for character protection. To protect the character, the story would essentially have to be a character study. The Maltese Falcon is not a character study of Sam Spade.
An example of character protection using the “story being told test” is the Rocky franchise. A screenwriter wrote a story on spec using the characters Rocky, Adrian, Apollo Creed, and Paulie. The work was considered to be an infringing use of the characters. The characters were protected because the movies focused on the characters and their relationships, not on intricate plot or story lines. The characters were the story being told. The writer could not avoid the infringement touchpoint of substantial similarity when he took the characters and used them in a new storyline.
Fictional characters can lead a new and independent life completely separate from the original work in which they appear. They are an additional creative asset in a writer’s intellectual property portfolio. There is no straight forward way to register for character protection with the Copyright Office other than as part of the larger work. Authors will be well served to think about protecting the rights in their characters when signing publishing contracts and licensing agreements.
Kathryn Goldman is an intellectual property attorney and Editor-in-Chief at the Creative Law Center. She represents, writes for, and teaches creatives and entrepreneurs about copyright and content protection, trademark basics and branding, and business building. She can be reached at Kathryn@creativelawcenter.com.