Unique Elements of Expression and Copyright Protection - Essay Example

Question: Batmobile has its distinctive characteristics and unique elements of expression. Thus, it qualifies for copyright protection. Critically discuss the implications of this approach on the production of factual characters in film from comparative perspective. Name: Subject & Code: Instructor: Date: Question: Batmobile has its distinctive characteristics and unique elements of expression. Thus, it qualifies for copyright protection. Critically discuss the implications of this approach on the production of factual characters in film from comparative perspective. Introduction Copyright refers to a type of protection accorded to originator or authors of ‘‘original works that exists in tangible medium of expression1. The copyright owner is given exclusive rights to utility of the protected works. Copyright law intervenes in the relationship of the consumers of content with the creators of the content, by stipulating the rights of the user with the rewards of the author2. When the work is copyrighted, an element of the protection may extend to the characters in the works, whether they are animated images or objects3. Traditionally, the characters were not given copyright protection except for when the character was particularly distinctive or essentially part of the ‘‘tale being told.’’ Such tests are traced to the landmark ruling of the United States Court of Appeals, specifically the New York-based Second Circuit, and the California-based Ninth Circuit4. Courts have traditionally used either of the tests, while habitually relying on the types of characters drawn in the case. Basing on the “especially distinctive” test, the characters that are “adequately delineated’’ and tend to demonstrate ‘‘consistent and extensively recognisable traits” stand to be accorded copyright protection5. Basing on this background, courts have given copyright protection to a number of iconic characters, such as Tarzan, James Bond, and Mickey Mouse, yet declined from providing copyright protection to some iconic character like Sam Spade from the movie “The Maltese Falcon.” Indeed, is has often been argued that when a character is less developed, then it is less likely to be copyrighted. This stands as the price that originators must carry for making their character indistinct6. However, a recent case law of DC Comics v. Towle [2015] 7appears to illustrate this maxim, and offers additional insight into the qualities of characters that qualify for copyright protection. In the case law, it was ruled that Batmobile has its distinctive characteristics and unique elements of expression, and therefore qualifies for copyright protection. This paper critically discusses the implications of the approach on the production of factual characters in film from comparative perspective. Brief background The Batmobile is a state-of-the-art vehicle used by Batman in his covert crime-fighting missions. On September 23, 2015, the Batmobile was issued with copyright protection. While not particularly identified in Copyright Act, the court did recognize the need for copyright protection to extend to the whole original work as well as “sufficiently distinctive” components, including comic book characters used in the work8. To determine if the copyright protection can extend certain element, the courts performed a three-part test. The character should have “physical in addition to conceptual qualities,” be “sufficiently delineated” and demonstrate “consistent and extensively identifiable traits” to allow it to be recognizable over time, and lastly, be “specially distinctive and possessing certain unique features of expression.” The Ninth U.S. Circuit Court of Appeal ruled in the case law of DC Comics v. Towle [2015] 9that Batmobile met the criteria, and was therefore worthy of copyright protection. The court ruled that the Batmobile met the first test as Batmobile appears graphically in comic books in addition to when portrayed in three-dimensions as automobile in motion pictures and television series. The court also held that Batmobile meets the second test as Batmobile is adequately delineated and therefore identifiable as the same character, and possesses consistent features, attributes, and character traits10. The court also held that Batmobile could not just be viewed as a stock character. Apart from its significance as a reliable bat-themed sidekick that Batman used possessing distinctive character traits, it contains unique as well as highly identifiable name.” For that reason, the automobile is “particularly unique” and has unique expressive elements. The ruling came in 2011 after Towle was sued by DC Comics for copyright infringement, unfair competition and trademark infringement. Towle claimed in its defence that the Batmobile could not be copyrighted, and that even if that was possible, DC Comics did not own the Batmobile’s copyright as had been showed in the films and television shows. The District Court ruled against Towle, who later appealed to the 9th Circuit Court of Appeals11. Implications The three part test and approach has several implications on the production of factual characters in film from comparative perspective. It is argued that the approach would encourage further copyright registrations for inanimate objects and fictional characters, yet make it difficult to copyright factual characters unless they are consistently modified to meet the three-part test. Additionally, the use of pre-existing fictional characters and inanimate objects from third party sources would be viewed as copyrighted characters, hence prompting the filmmakers to copyright them12. The Batmobile ruling has considerable implications for owners of creative works that feature some iconic factual characters. Conditional on the outcome, either of the parties may be given the control over the utility of the inanimate objects as well as be provided with the right to enjoy substantial revenue streams using licenses, or even be disallowed such privileges13. This is a specifically significant issue as regards the movies that use serialized fictional characters, yet not feasible for the factual characters. The reason for this is, while the fictional characters tend to have more long-lasting character traits, the factual characters tend to change over time, which makes it difficult for them to pass the three-part test. Characters have to be “especially distinctive” The test will have significant implications on factual characters in films, as there would be greater emphasis towards modifying them to make them more distinctive. In other words, without modifying the factual characters to make them “especially distinctive,” factual characters are not likely to be copyrightable compared to the fictional characters. As can be explained further, under the “especially distinctive” test, the copyrightable characters have to be sufficiently delineated’’ as well as demonstrate “consistent and extensively recognisable attributes” to be provided with copyright protection. However, the test is more applicable to the fictional characters that can be developed over time, to make them “especially distinctive.” The test came about from a Second Circuit decision in 1930, in the case law of Nichols v. Universal Pictures Corp [1930]14. It involved a supposed infringement of the play Abie’s Irish Rose by Universal Pictures’ motion picture “The Cohens and the Kellys.” It was held that Universal Pictures had not infringed the characters in the play. Indeed, regarding the characters, the court argued that when the characters are less developed, they are likely to be denied copyright protection15. Therefore, the characters, whether fictional or factual, must not be too indistinct.’ In the case law, the court explained that the characters had been faintly indicated, which only meant that they could be stage properties. The court further argued that while the characters in the play were “fertile and loving,” that is all that could be described of them and that any person could as well put “fertile and loving” characters in a play, whether they are factual or fictional characters. As a matter of fact therefore, Universal Pictures prevailed over the playwright for copyright infringement as the characters were not especially distinctive. The approach has several implications on the production of factual characters in film. It implies that the characters in the films should have very unique traits or attributes that cannot be possessed by any other character, and that such traits should be identifiable and traceable to the film whenever, wherever and over time16. Character should have “physical as well as conceptual qualities” The test will have significant implications on factual characters in films, as there would be greater emphasis towards modifying them over time to make them “physical and conceptual qualities” to make them more copyrightable. However, this may not be feasible over time, as factual characters change with age, which also means that the physical features change over time. By conceptual qualities, it means that the character has to be central to the story in the film to be copyrightable. Such a test was demonstrated in the landmark ruling in case law of Warner Bros. Pictures Inc. v. Columbia Broadcasting [1954] 17concerning “Sam Spade,” a character in a serial publication called “The Maltese Falcon” by Dashiell Hammett. Warner Bros. had sued Hammett for copyright infringement following a dispute on the ownership and use of some characters from “The Maltese Falcon.” When Warner Bros bought certain rights from Hammett to The Maltese Falcon, it claimed it had also obtained the exclusive right to the book, as well as the use of characters in the book. However, the Ninth Circuit ruled that by transferring the rights to Warner Bros, it did not mean it also included Sam Spade as well as the supporting characters in the book. The Ninth Circuit further claimed that for a character to be given copyright protection, the character has to make up the story being told but when a character is the sole chessman in a game of telling the story, the character is not copyrightable. Based on the court’s account, Sam Spade as well as other characters of the book could not have been perceived to be the conceptual part of the story. Instead, they were mere vehicles for carrying the story. In which case, Hammett had the right to use Sam Spade in different other stories, despite having sold Warner Bros. the rights to the story. A vital question at this rate is why Sam Spade, a memorable character, is not copyrightable. A clear answer is that not all characters have as characters who are conceptually and physically outstanding and unforgettable as James Bond. While the audience may have viewed Maltese Falcon, they may not know Sam Spade. By “physical and conceptual qualities,” it implies a character has to play a central role in concept of the story yet be physically imaginable, without which the story would not exist. For instance, in James Bond movies, it is James Bond character who is the concept of the story, as people do not watch other characters for the story, they watch the movie to see the hero and his pursuits. In which case, James Bond is inseparable from the James Bond film. The film without the heroic character (James Bond) is not a James Bond film. This test was affirmed in Batmobile, which was given copyright protection for being conceptually and physically outstanding and unforgettable. The Ninth Court recognized the need for copyright protection to extend to the whole original work as well as “sufficiently distinctive” components, including the characters used in the work18. However, it emphasised that such characters should have “physical as well as conceptual qualities” to allow it to be recognizable or memorable over time. However, it should be remembered that Batmobile and James Bond are fictional characters. This has far-reaching implications on the production of factual characters in films. To make the characters copyrightable, the filmmakers would need to time and again modify the characters to be part of the story in physical and conceptual terms. This implies making them as memorable as possible, and inseparable from the story, rather than just vehicles that carry the story. “Consistent and extensively identifiable traits” The test will have significant implications on factual characters in films, as there would be greater emphasis towards providing the characters with “consistent and extensively identifiable traits” to allow them to be recognizable over time. Alternatively, as this is not feasible over time as factual characters change with age, film-makers would need to fictionalise the factual characters in serialised films19. Indeed, it could be reasoned that there are some explanations for why some characters tend to endure in the imagination of the audience and have been provided with copyright protection. In the Batmobile case, the Ninth court affirmed that for a character to be copyrightable, it has to have attained a high level of identification and recognition20. In which case, the character has to call to mind distinct images in people’s imaginations just by just seeing or reading the name. Examples of these characters include Tarzan, Mickey Mouse, Tom and Jerry, James Bond, Godzilla, and Rocky Balboa. Conceivably, the abovementioned characters possess inimitable, peculiar, and identifiable traits that are also consistent over time. They also play a central role in the story, without which the story would not exist21. Among the conceivable characters that have been provided with copyright protection include James Bond. For instance, in the case law of Metro-Goldwyn-Mayer Inc. (MGM) v. American Honda Motor Co. [1995]22, it was claimed by MGM that Honda had infringed its James Bond copyright in a television advertisement. The court held that James Bond character is copyright protected given that it has “consistent and extensively identifiable traits” and sufficiently distinct traits, which are only ascribable to him. These include James Bond’s ‘marksmanship’, ‘love of martinis ‘shaken, not stirred,’ and ‘blatant sexuality.’ These traits, and among many other traits, have been repeatedly delineated in all the James Bond series. These could also be said of the character Rocky Balboa in the ‘Rocky’ series of films. Rocky Balboa is inseparable from a ‘Rocky” film, without which “Rocky” film without him would not be a “Rocky” film. Such facts were held in the case law of Anderson v. Stallone [1989]23. While giving copyright protection to the Rocky Balboa character, it was held by the court that the character Rocky Balboa is highly delineated, and that his name is the title of all the “Rocky” series of films, and a result, consistently identifiable with exact character traits that ranged from Rocky Balboa’s speaking mannerisms to his physical features. These could also be said of the character Godzilla in the ‘Godzilla” films. Godzilla has consistently identifiable traits that show in all the films. As was demonstrated in the case law of Toho Co. v. William Morrow & Co. [1998]24, the court held that Godzilla has a consistent set of traits that differentiate him from other characters. These include ‘‘Godzilla being a pre-historic character, who is gigantic and breathes fire. Using such characters, the court held that Godzilla is has consistently identifiable character containing high delineated and consistent traits. These traits afforded Godzilla copyright protection25. Conclusion Batmobile was issued with copyright protection based on a three-part test: Characters have to be “especially distinctive,” “physical as well as conceptual qualities,” and “Consistent and extensively identifiable traits.” The three-part approach is likely to encourage further copyright registrations for inanimate objects and fictional characters, yet make it difficult to copyright factual characters unless they are consistently modified to meet the three-part test. This is a specifically significant issue as regards the movies that use serialized fictional characters, yet not feasible for the factual characters. The reason for this is, while the fictional characters tend to have more long-lasting character traits, the factual characters tend to change over time, which makes it difficult for them to pass the three-part test. The “especially distinctive” would, therefore, see greater emphasis towards modify factual characters to make them more distinctive. Without modifying the factual characters, or fictionalising them, to make them “especially distinctive,” factual characters are not likely to be copyrightable compared to the fictional characters. The “physical as well as conceptual qualities” test would see greater emphasis towards modifying factual characters over time to make them physical and conceptually part of the story being told. However, this may not be feasible over time, as factual characters change with age, which also means that the physical features change over time. The “Consistent and extensively identifiable traits” test would see greater emphasis towards fictionalising factual characters to make them recognizable over time. As modifying factual characters is not feasible over time as factual characters change with age, film-makers would need to fictionalise the factual characters in serialised films. Works Cited Anderson v. Stallone [1989] 11 USPQ2D 1161 (C.D. Cal. 1989 Brehm, Allison and May, Eric. "Recent Decisions Continue to Reshape the Law Regarding Copyright Protection for Fictional Characters." Bloomberg BNA, 2014, http://www.kelleydrye.com/publications/articles/1862/_res/id=Files/index=0/1862.pdf (accessed 27 April 2016) Carlisle, Stephen. "Holy Blind Justice, Batman! The Batmobile Is a Character!" 2015, Read More