Using Literary Theory To Illuminate Copyright Doctrine

Zahr Said, University of Washington School of Law, is publishing Fixing Copyright in Characters: Literary Perspectives on a Legal Problem, in volume 35 of the Cardozo Law Review (2013). Here is the abstract.

Scholars have long noted that copyright in characters is fraught with uncertainty and inconsistency. This Paper argues that an interdisciplinary approach sheds light on the doctrinal confusion. Literary history, theories, and texts demonstrate that the very factors that gave rise to characters’ centrality to modern literature may be the factors that make protecting them independently under copyright difficult. The more central characters become to works of literature, the less separable they will be from those works for the purposes of receiving independent copyright protection. Literary theories of reading also suggest that characters may fail to satisfy one of copyright’s fundamental requirements: fixation. Contemporary theories of reading practices hold that reader engagement is necessary in the mental process that “completes” characters. If this is true, then in a fundamental way, while texts may be fixed, characters, outside their texts, are not.
Literature exposes the reductive nature of the law’s treatment of characters, and its simplistic view of the proper scope and implementation of independent copyright protection. The Article concludes that copyright law would do well to take account of the ways in which literary texts and theories reveal characters to be much more complicated than copyright law currently contemplates. Although literary insights into character do not themselves require either expansion or contraction of protection — dependent as reforms are on policy concerns endogenous to copyright — they do fundamentally change the nature of the inquiry. These insights expand the law’s understanding of characters and highlight theoretical and doctrinal implications of the confusion currently stymieing character protection under copyright law.
Finally, this Article comes on the heels of several very high-profile cases. The issue itself — the scope and strength of copyright in literary characters — is one that remains vital in a landscape of cross-marketing, IP licensing, and sequel-driven literary and film franchises. In the past two to three years alone, major cases have been brought, or resolved, based on Harry Potter, The Hobbit, Betty Boop, Sherlock Holmes, and Holden Caulfield of The Catcher in the Rye. Yet other than two or three excellent student notes, scholarship in this area has not been sustained or focused on this topic in over two decades. A major rethinking of the doctrines in this area is necessary, and timely. This Article aims to launch a conversation that will help to revitalize the flagging scholarly discussion in an area that is of critical importance to the entertainment, publishing, and gaming industries, as well as a crucial source of livelihood for authors and creators.

Download the full text of the article from SSRN here.