Abdel-Khalik on Scènes à Faire As Identity Trait Stereotyping @UMKCLaw

Jasmine Abdel-Khalik, University of Missouri, Kansas City, is published Scènes à Faire As Identity Trait Stereotyping in volume 2 of the Business, Entrepreneurship & Tax Law Review (2018). Here is the abstract.

Nichols v. Universal Pictures is one of the seminal copyright cases, but there is an unexplored component the decision - the court's discussion of the "low comedy Jew and Irishman." The decision creates at least one place where the law not only recognizes but may expect and encourage stereotyping based on race, ethnicity, gender, sexual orientation, gender expression, nationality, and the like (“identity traits”) - stock characters. A stock character is the archetype of a story’s character and, as such, is excluded from copyright protection, making the stock freely available for other authors to use. However, harm arises when courts agree that a stock character is comprised of an identity trait and any other characteristic, indicating that what flows naturally from that identity trait is something more than just that identity - a stereotype. Courts cannot solve the societal harm of stereotyping, but it can take steps to minimize identity trait stereotyping while continuing to permit the use of stock characters. First, courts should recognize three categories of characters in creative works: stock, indefinite, and distinctly delineated. While only distinctly delineated characters would have copyright protection, the intermediate category allows courts to find that a character has multiple characteristics without implying that the characteristics are standard for specific identity traits. Second, courts must separate the determination of a character’s scope and copyrightability from the substantial similarity analysis to avoid conflating similarity with stock. Third, when possible, courts should also take the opportunity to correct the errors of the past. While no copyright doctrine alone is to blame for society’s stereotyping and stereotypes, scènes à faire grants judicial approval for continuing stereotyping. Without more care, the consequences could not only further entrench negative stereotypes in the creative mind, but also in the minds of those who consume their creative product.

Download the article from SSRN at the link.