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.
In summary
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.
What’s the position on Fan Fiction (which I can’t say I’ve ever read, or particularly approve of)? I would have thought that area is ripe for character copyright law suits. Is that happening much?
Fan fiction is a hot button for many professional writers. Broadly speaking, if the fan fiction is written by a non-professional and is non-commercial then it is more likely to be considered fair use, an exception to infringement. However, even if the work is not professional and not commercial, many writers consider fan fiction an infringement.
My purpose in writing this post is to make writers aware that their characters can have individual protections. It is a concept that should be considered when licensing the work, in an option agreement for instance. I have seen requests from producers to option not just the work, but certain characters in the work. Writers need to consider how they want to deal with those requests when they come. You do not need a multi-million dollar franchise to start thinking about it.
I will say one thing first, lawyers always reveal the most interesting legal battles in various subjects. I knew of none of these incidents. Thank you Ms/Mrs Goldman and as always thank you Jane Friedman for sharing.
I admit I wanted to have my first fan fiction this year and I failed. I like to create something I never did before each year. But this article made me realize I made two errors.
My first error was my inability to make a fan fiction. I am an original creator and every time I tried i kept making a world or characters that have no plot connection to the source fiction or characters. Imagine a story supposed to be set in the same world as harry potter but is primarily concerned with a magical detective agency in calcutta during the mughal era where the magicians don’t use wands and the plot never goes to europe or the usa or mentions any spells in harry potter or any of the references of the movies or books. Is that fan fiction? or merely fiction that a writer has to say is based in the harry potter world?
But after this article, I made a second. I didn’t put enough thought into the whole activity of fan fiction, especially to work that is not in a public domain. I am glad I failed to continue the use of the world or characters in the material I wanted to make fan fiction for. I still will like to try it. but I will start with a better dialog with the author. that is first
Wow. An inability to make a fan fiction. I didn’t know that was possible. Since I was a toddler, I’ve been making my own versions of nearly every show I watched. And over the last year I’ve been compelled to write out over 54k (and counting) of a piece of crossover fan fiction that just won’t let go of me, even though I have other, commercially-publishable books that should really be getting priority.
I’ve always loved to play with variations on a theme. What would I get if I changed this? What if I tweaked that? A huge chunk of that 54k I mentioned came out of “How would these (mid-1970’s idea of “futuristic” characters) react to a modern (turn-of-the-millenium, anyway) car?”
I had a similar result wirh a fan fiction effort. All it took to kill the otherwise-wonderful experience was one eager fan to inject wild absurdity into the plot. The other fans stopped contributing. The story die of malnutrition. I didn’t bother to revive it. It now lies 6 ft under in a forum’s Boot Hill, where I shall endeavor to it interred forever.
I thought characters were for trademarks to protect. you look at all the comic books, and major characters are protected under trademark, not copyright. It’sa major point of negotiation between creator and publisher with new series whether the creator has “copyright and trademark” or just “copyright.”
Characters can be protected by trademark, as well. You are correct. Think Mickey Mouse — protected by both copyright and trademark. Trademarks act as source identifiers, copyright protects creative expression. There are different standards at play. Trademark protection for characters would be a good subject for another post.
Wow. Excellent article! Thank you!
Me thinks the point of this article is that there are weasels who will use the courts to bludgon authors into giving up future rights to characters. The Maltese Falcon example was depicting the intentional twisting of a mere license into an implied permament forfeiture as if all rights to the character had been sold. As for trademark law, that only protects images and designs, not the underlying characterizations built by story line.
Kathryn is pointing out that we authors can and should explicitly, by contract, protect our characters from “weaseleeze” virtual kidnapping by weasels..
And, by taking the effort to protect, we create still another Avenue to gain revenue for our works.
Very interesting! You write that, “characters with independent copyright can be licensed separately from … stories” yet “There is no straight forward way to register for character protection with the Copyright Office other than as part of the larger work.” How is the independent copyright of the first sentence established, then?