IP for Characters & Symbols: IPSC 2016

IPSC 2016 Breakout Session I: IP for Characters and Symbols

I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter,  tell us who you are in the comments.

Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan

Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon

Zombie Cinderella and the Undead Public Domain – Rebecca Curtin

Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt

Intellectual Property in Internet Folklore – Cathay Smith

Mira Sundara Rajan, Is Copyright an Author's Right? An Authorship Perspective on Copyright Law

Copyright is arguably the only regime designed to promote culture, and that should mean providing income to creators. But many authors struggle to make a legitimate income. Mira is concerned that copyright isn't correctly calibrated to that end. At a minimum, authors need more voice.

Lisa Ramsey asks whether Mira plans to frame this as a human right or some other way.

Mira: International law mentions a moral right of authors as a form of human rights. But the Berne treaty may effectively embody human rights in automatic protection at creation.

LRamsey: But then might the human right to copyright conflict with a human right to free speech? And if corporations hold copyright, is it proper to think about copyright as a human right?

Shyam Balganesh: There are two ways to look at copyright - looking at authors rights, and looking at the acts that authors take. You propose that the net income of authors is low, but it's not clear that copyright is the right mechanism to enhance their welfare. Perhaps authorship is the better focus than authors.

Mira: Japan grants to corporations something that looks like a human right in authorship functions, and Japan is an outlier here.

 

Jani McCutcheon, Works of Fiction: The Misconception of Literary Characters as Copyright Works

Fictional characters qualify as protectable copyright works in large part because of a problematic Learned Hand opinion, Nichols v. Universal Pictures Corp.  But to protect characters as works, they must be identifiable. But where is the character perceived? You can't excise the character from the text, and characters are more abstraction than expression. If we are separating characters out as works, is there a right and a wrong way to read or construct the character. If not, it may be impossible to define the character as a protectable work. Characters traverse different media, which further complicates the question.

Deborah Gerhardt: Copyright has so many tests for the same thing. I love clear rules, I love the Feist opinion because it is clear. I'm resistant to your analysis because it gives us an entirely different originality test for characters than anything else.

Jani: I'm not sure we should be looking for a way to define the character, and I wouldn't apply the test to characters at all.

Betsy Rosenblatt: I'm quite sympathetic to the project, but I'll ask a question I've been asked. Why isn't this a problem for all of copyright? Reader response theory suggests all interaction with copyrighted works is dialogic. If so, this is a universal problem for copyrighted works. Perhaps this is similar to [Guy Rub and Margot Kaminski's] zoom-in, zoom-0ut problem.

Jani: This may be a broader phenomenon.

Lisa Ramsey: This reminds me of Betsy's work on Sherlock Holmes. But I'm conflicted. Some characters are well-delineated. If I add Harry Potter to my law school novel, is there any infringement? Of what?

Jami: What do we mean by take Harry Potter? Under my analysis, if little of the expression has been taken, and there is little / no substantial similarity between the works, there is no infringement. Admittedly, the name is potent, but because of trademark significance. 

Inayat Chaudhry: What if there are characters like Calvin & Hobbes, and the whole work is based on the characters?

Jami: This is a hybrid work, with visual and literary components, which complicates the analysis. 

Seagull Haiyan Song: I agree the current test doesn't work. But if copyright protection isn't the right solution, should there be something else? Protection of character rights as such?

 

Rebecca Curtin, Zombie Cinderella and the Undead Public Domain

[Is this the best title of the conference?]

Someone tried to register "Zombie Cinderella" as a mark for a doll. There was an initial refusal grounded in confusion with Disney's Cinderella. The Trademark Trial & Appeal Board reversed the refusal, holding the "Cinderella" part of Disney's mark was a conceptually weak indicator, in part b/c of third party dolls on the market, and in part b/c of long history of the Cinderella story.

The danger here is that the signal sent is that Disney should have worked harder to protect the mark. And we see protectable marks for Cinderella soap, cosmetics, etc., and that doesn't seem problematic in the same way. Is Cinderella generic for dolls? That doesn't seem quite right, and genericism doesn't fully animate what the public domain story lends to the underlying good.

Instead, I'm thinking in terms of extending the aesthetic functionality doctrine to cultural elements. Trademark needs a doctrine to deal with the use of fairy tale princesses as trademarks or brands.

Betsy: Aesthetic functionality is what Tyler Ochoa suggested to me instead of genericism as the solution to the Sherlock Holmes problem. I want to make a push for genericism (I'm glad you didn't go to descriptive). You are right - it's not descriptive for dolls, but it is the generic descriptor for the character. You can't call Sherlock anything other than Sherlock, and you can't call Cinderella anything other than Cinderella. We use nominative fair use to deal with it on the infringement side, but we should have to. Here, the term Cinderella is generic for what the product represents. AF is a poor fit: oxymoronic, and it seems to ask whether we buy something because it is pretty / attractive.

Deborah Gerhardt: Perhaps we need a public domain for characters like these.

Ann Bartow: Is this like copyright title, where you don't get protection in titles? [Jake: trademark handles title differently, for books - no protection for a single book, but protection for a series of books (Harry Potter & ___) or magazines.

Ed Lee: I would prefer a more full-throated defense of the public domain created by the copyrighted work aspect. You could try to recapture a trademark public domain - what's the proper boundary of a copyrighted [cultural?] character in the public domain. [JL: Is this then a Dastar problem - no trademark protection because the character as cultural artifact in doll context belongs in the copyright bucket, and protection has expired?]

Laura Heymann: You may benefit from disaggregating the individual aspects of Cinderella and her characteristics. United used Rhapsody in Blue - the fact that it's in the public domain doesn't necessarily mean it cannot have some trademark function, so more careful pulling apart may be valuable.

 

Deborah Gerhardt, Trademarks, Core Values and Cultural Leadership

A trademark may represent core values around which a community can coalesce. When you look at a brand community, what values does it have? Is the communal identity potential harmed by dilution, for example?

For example, brands are now pressured to make a stand on cultural issues. Target, for example, acted to restrict open gun carry in its stores. Here the brand is used as a tool for political reform. PayPal refused to bring in a business center in direct response to North Carolina's HB 2.

To have a mark strong enough to support a dilution claim, perhaps some identifiable core value is the minimum. If so, dilution harm is a disruption between the core value and the ostensibly diluting use. Goldfish crackers with marijuana - there may be disruption between core values and the brand. Louis Vuitton parody toy handbags? No disruption of the core value, merely playing with the core value. [JL: If that's right, is this anything more than a parody non-parody analysis? Not clear to me.]

Andrew Gilden: Does your "core values" require a popular political stance, or cultural buy in? If the majority turns in favor of equality, is this really a "core" value.

Deborah: Imagine that someone else had interfered with Ashley Madison's ability to signal its core value of secrecy and discretion. That might be a core value that the majority of Americans doesn't "value," but it at the core of Ashley Madison's brand identity.

Andrew: What if Christian Mingle tried to adopt an abandoned Ashley Madison brand.

Deborah: Sometimes core values are forged in crisis.

Seagull: Core values, under your definition, seem like they must be shifting.

Laura Heymann: Do you need to distinguish between value and core attribute?

 

Cathay Smith - Intellectual Property in Internet Folklore

Are there protectable rights in internet folklore? My project looks at the evolution of Slenderman, his propertization, and the coming movie, to investigate this question, and ask who is benefitted and harmed.

The character first showed up on the Something Awful website, in an image posted by Victor Surge.  At first, people posted their own "sightings" of Slenderman without claiming any ownership of the character. But as the character has become more popular, parties have begun claiming ownership rights. At least two short films posted online were taken down after receiving a takedown notice. But the provenance of the ownership is uncertain. The claims lead to a chilling effect.

Is there ownership in Slenderman? Cathay argues no - Slenderman as we understand him wasn't fully developed with the first Victor Surge posts, but collectively as he became popular. She also argues factual estoppel - if the author(s) claim Slenderman is a real person and posted sightings are factual, then copyright claims might be estopped. Rights in the name of the title / name are also weak, under Rogers v. Grimaldi.

Normatively, property rights seem unjust. The Hollywood blockbuster isn't giving back to the community. This is also a nice example of chilling effects. In addition, propertization runs counter to community norms and ethos.

Ed Lee: Copyright might be a bad fit. Perhaps attribution, as a sui generis right, should be respected.

Cathay: Do you mean giving rights to the community, or preventing propertization of something created by the community.

Ed Lee: There are a range of options. I mean something more unleashed / free than standard property rights.

Lisa Ramsey: This reminds me of the orphan works problem - who is the owner? There are also joint works problems. So under current copyright doctrine, if people are fixing individual images, those seem independently protectable. Are the derivative works, derived from what version of the character, and if so, can you get protection in them? 

Q: Is this character just a standard bogeyman? How much of this is really new? [Lisa Ramsey: Scenes-a-faire]

Seagull: Might we get something from creative commons analysis.

Q: Other commons uses of musical communities might also be valuable to consider.