The Massive Complexity Of Copyright Demonstrated In A Simple Question: Can Don Draper Make A Cameo In My Novel?

from the it-depends dept

A few weeks back, I saw Mark Fowlers really excellent blog post covering more or less everything you need to know about the legality of incorporating fictional characters into a new work. It covers many of the stories and/or themes that we've discussed in the past, including the banning of Coming Through the Rye and the non-banning (almost banning?) of The Wind Done Gone -- both books that were sued for including characters from other (much more famous) books, but from a different context. It also covers issues related to fan fiction.

As I said, it really is an excellent, balanced and thorough read on the topic. But, the thing that got me was how it demonstrated just how complex and silly copyright law has gotten in cases where people are looking to be creative. The purpose of copyright law, again, is to encourage creativity and new works. Some may argue that it's "not new" to reuse someone else's character, but it's hard to support that, when you realize the number of wonderfully creative works that have been made by building on characters created by others. The real issue, to me, is that it all comes back to a simple point: does the new work take anything away from the original work? In almost all cases, the answer is going to be no. Contrary to the assertions of someone like Prince, when someone builds on your work, it does not harm the original. If anything, it's only likely to enhance the original, potentially introducing it to new and different audiences.

It's hard for me to reconcile the idea of giving a copyright to a single character in a book with both the purpose of copyright law and the intention of the First Amendment. In both cases, we're talking about principles that were supposed to encourage creativity. And, as most creative people will admit, real creativity is almost always derivative. People build on the works of others all the time, and it doesn't diminish or harm the original works. In many ways, it's a creative challenge to build on those works and to create something new and creative out of them. I also still cannot understand how the concept of copyrighting a "character" does not run afoul of the simple prohibition on having copyright cover "ideas." A character is an idea. The specific expressions of that idea can be copyrighted, but it seems simply wrong to claim that the idea of a character can then be covered by copyright.

If anything, the rise of fan fiction has helped to show how silly the laws are that make it, in many cases, against the law to build on the works of others. Fan fiction has galvanized and excited plenty of communities around original works. It is, in many ways, the oldest form of storytelling. Historically, the storytellers around the campfire didn't just make up each and every story anew. They would hear the stories of others and enhance and embellish them. That's hardwired into our culture, and it seems pretty silly to me to try to limit that with copyright law.


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  1.  
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    Anonymous Coward, May 13th, 2011 @ 5:44pm

    Didn't copyright originally apply to physical books? And they say the law doesn't evolve and innovate.

     

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    ChurchHatesTucker (profile), May 13th, 2011 @ 5:46pm

    Nope

    The purpose of copyright law, again, is to encourage creativity and new works.

    The stated purpose, sure. But we both know the actual purpose was to put the weight of government behind publishers.

     

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  3.  
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    Karl (profile), May 13th, 2011 @ 6:15pm

    Creativity?

    In both cases, we're talking about principles that were supposed to encourage creativity.

    Minor point.

    True, copyright law's purpose is to promote creativity, in the literal sense. Meaning, the production of more works; not, necessarily, the production of works that are "creative" (since that is an aesthetic judgement, which has no place in law).

    The First Amendment, on the other hand, has no such goal. Its goal is to restrict the government's ability to control speech of any kind. Whether it actually produces more or better speech is completely immaterial.

    It leads to thinking that "the First Amendment may apply to x speech, but not to y speech." (Many people think "x" means "political" speech, and "y" means whatever they don't like - hate speech, pornography, etc.) That's just plain wrong.

    As it stands, people might think you're saying "x" is "creative" speech, leading them to conclude "y" is "non-creative" speech. That is also wrong.

    I don't think that's what you mean, but I thought I'd make it clear.

     

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    DanJ, May 13th, 2011 @ 6:37pm

    Creative?

    Some may argue that it's "not new" to reuse someone else's character, but it's hard to support that, when you realize the number of wonderfully creative works that have been made by building on characters created by others.

    To anyone who'd say that, I'd just point out that that Shakespeare guy was a profoundly uncreative fellow. He stole everyone of those plays that are supposed to be so good from earlier stories.

     

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  5.  
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    Jay (profile), May 13th, 2011 @ 7:12pm

    Re: Creativity?

    So we shouldn't have obscenity laws at all?

     

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  6.  
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    Jay (profile), May 13th, 2011 @ 7:12pm

    Re: Creativity?

    So we shouldn't have obscenity laws at all?

     

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  7.  
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    Nicedoggy, May 13th, 2011 @ 7:43pm

    I just realized that if story tellers of the past had copyrights and obeyed them to the letter many cultures could not have been born since telling stories would infringe on the right of others.

    How would legends be born?

    Would we have Thor movies today? stories about Titans, Giants, Dragons and so forth.

    In music that was that one beat that created an entire genre at it is used to this day for everything, should the creators of that beat decide to get litigious commercials would never be the same.

     

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    Karl (profile), May 13th, 2011 @ 9:51pm

    Re: Re: Creativity?

    So we shouldn't have obscenity laws at all?

    Well, I don't think we should, but courts disagree.

    Regardless, it does mean that "obscenity" is, at least potentially, protected speech.

    More to the point, it means that whenever the government makes a law against any form of expression whatsoever, it must have a compelling reason - a reason so compelling that it trumps the First Amendment itself.

    That's the theory, at least.

     

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    Anonymous Coward, May 13th, 2011 @ 10:11pm

    Superman

    If I were to create a comic strip using Superman, my work may be creative (hopefully), but am I really taking just the character and nothing else?

    The concept of the Superman character involves more than just a charismatic alien in a cape with a big S. It's more than just each of his super powers. It also includes his entire personal history from birth, his home world and it's destruction, his parents who still influence him beyond death not just in his memory, but from the crystals Superman has in his Fortress of Solitude. Superman is also incomplete without Lois Lane, and Lex Luthor, and all of the history amongst all of them.

    Including Superman in a new work also seamlessly lifts all of the above, which is, in my opinion, significant.

     

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    zegota, May 13th, 2011 @ 10:19pm

    Re: Superman

    I see what you're saying. But it gets really tricky. I think Mike is partially right, in that copyright law is overly complex. But it's also hard to craft simple laws that work for everything. Ideally, you'd be able to take a character like Superman and, say, plop him down in a dinner party with other characters, even if you sold this story. But it's hard to craft a law that allows for this, while not allowing you to, say, just start writing a bunch of Superman comics and publishing them. Though some people say the latter scenario should be allowed, I'm not sure it should. But it's hard to say "You can make a derivative work but only if it's x genres away from the source material.'

    Anyway, regardless of all the commercial business, I do absolutely think noncommercial fanfiction should be completely legal regardless of whether or not the author gives permission.

     

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    Brendan (profile), May 13th, 2011 @ 10:54pm

    Re: Creative?

    Same goes for Walt Disney and all his uncreative classic animated adaptations of really old stories.

     

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    The eejit (profile), May 14th, 2011 @ 12:20am

    Re: Re: Superman

    A simple four-step plan:

    1) Copyright is non-transferrable; however, the rights can be licensed by a person/group for a limited time;
    2) Limit it to 15 years or life plus five, whichever is the shorter. In the case of the creator's death, the work passes to his estate for the period (this is the ONLY exception to (1) above);
    3) Infringement damage are limited to actual provable harm;
    4) Copyfraud, if proven beyond a reasonable doubt, reaults in the automatic revocation af allcurrently-held rights by the fraudulent claimant.

     

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  13.  
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    Prisoner 201, May 14th, 2011 @ 2:30am

    Re: Obscenity etc

    Freedom of speech is never about things everyone find acceptable - there really is no need for a law to protect that.

    Freedom of speech is about protecting the stuff that irritates, bothers or downright offends.

     

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  14.  
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    Anonymous Coward, May 14th, 2011 @ 3:20am

    Re: Superman

    What if it were just the 1939 version of Superman? Would he not be Superman, and if not, why not?

     

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  15.  
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    Richard (profile), May 14th, 2011 @ 5:33am

    Re: Nope

    But we both know the actual purpose was to put the weight of government behind publishers.

    No - actually your 180 degrees wrong there. Copyright (like all patronage) was designed to ensure that the publishers backed the government...

     

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  16.  
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    Richard (profile), May 14th, 2011 @ 5:45am

    Re: Superman

    If I were to create a comic strip using Superman, my work may be creative (hopefully), but am I really taking just the character and nothing else?

    The concept of the Superman character involves more than just a charismatic alien in a cape with a big S. It's more than just each of his super powers. It also includes his entire personal history from birth, his home world and it's destruction, his parents who still influence him beyond death not just in his memory, but from the crystals Superman has in his Fortress of Solitude. Superman is also incomplete without Lois Lane, and Lex Luthor, and all of the history amongst all of them.


    If I were to create a comic strip using Superman, my work may be creative (hopefully), but am I really taking just the character and nothing else?

    The concept of the Macbeth character involves more than just a Scottish nobleman in the middle ages with a crown and a dagger. It's more than just the fulfillment of a witch's prophecy. It also includes his entire personal history from birth, his wife and her ambition, his rivals, Burnham wood his castle. Macbeth is also incomplete without Macduff, and Duncan, and all of the history amongst all of them.

    See you can play the same game and get Shakespeare banned too.

     

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  17.  
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    Vincent Clement (profile), May 14th, 2011 @ 6:34am

    Re:

    Nonsense. There were no story tellers before copyrights because the copyright maximalists keep telling us that without copyright no one would ever create content.

    /s

     

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  18.  
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    PopeRatzo (profile), May 14th, 2011 @ 6:45am

    Are you kidding?

    "Can Don Draper make a cameo in my novel?"

    The way the intellectual property laws are going, you may not be able to even have a character named "Don" in your novel any more.

    I think the most rational response to the perversion of intellectual "property" laws is to ignore them entirely.

    Then, elect different leaders. And when the leaders you elect take money from the Content-Industrial Complex, fight to have them removed from office.

     

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  19.  
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    Liz, May 14th, 2011 @ 7:31am

    Re: Re: Creative?

    Go even further back to the Roman pantheon of gods.

     

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  20.  
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    Anonymous Coward, May 14th, 2011 @ 9:16am

    Re: Re: Superman

    I know nothing of Macbeth (despite having seen Branagh portray him), and so your analogy is not very compelling to me. I trust you that there is significant literary cultivation of the MacBeth character, but I wouldn't know any of it if a new work included him withut also summarising all of his relevant history.

    Clearly, this applies to anyone who doesn't know who Superman is too, even though that audience would be considerably smaller.

    I'm not suggesting that at a certain point some fictional characters become 'protected', like the Disney franchise appears to be enjoying - quite the opposite. But it still doesn't sit right that any high school student with a gift for drawing could pump out new Superman comics that could sell alongside those produced by DC comics.

     

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  21.  
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    Jay (profile), May 14th, 2011 @ 10:37am

    Re: Re: Re: Superman

    1) Non transferable? I thought the RIAA had that down to a science. Especially with the work for hire fiasco.

    2) Won't that just encourage the estate to ramp up copyright? See also, Tolkien estate.

    3) *cheers*

    4) And paying the defendant's lawyer fees.

     

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  22.  
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    Anonymous Coward, May 14th, 2011 @ 10:55am

    Re: Re: Re: Superman

    What if they're drawing religious material because they started a Church of Superman? Handing out pamphlets and such? Taking donations to ensure their church does good work?

    Or is it still illegal in, say, the United States? Because a multi-national corporation's intellectual property is more important than religious freedom?

     

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  23.  
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    NotMyRealName (profile), May 14th, 2011 @ 12:52pm

    Re: Re: Re: Re: Superman

     

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  24.  
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    Anonymous Coward, May 14th, 2011 @ 3:20pm

    Re: Re: Re: Re: Re: Superman

    DON'T YOU DARE CALL MY WORSHIP OF SUPERMAN UNREASONABLE OR ELSE I WILL TRY AND SAVE YOU FROM HARM!!!

     

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  25.  
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    Ken, May 14th, 2011 @ 5:24pm

    Re:

    Almost nothing produced is completely original. Inventions and ideas have always been built around other ideas. Innovation by definition is improving on existing ideas. An absolutist view will kill all innovation.

     

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  26.  
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    jupiterkansas (profile), May 16th, 2011 @ 9:29am

    Re:

    Of course there would have been stories. They would have been bought and sold by rich people just like they are today. Copyright is just a way for rich people to own culture, even long after the creator of that culture is dead.

     

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  27.  
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    Anonymous Coward, May 16th, 2011 @ 10:03pm

    Re: Re: Re: Superman

    Why not? In Japan, there is an entire genre of media based on people using characters and settings from professionally published works in their own amateur publishings. It works; it doesn't steal any anything from the professionals because people who would buy their work do anyways and some who might not have start. And if someone publishes a *better* story than the original--well, that's a good free market.

     

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  28.  
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    Ralph-J (profile), May 17th, 2011 @ 2:18am

    What about a story about an author that wrote a book...

    What about a story about an author that wrote a book with Don Draper as a cameo?

     

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