Copyright protection: the force could not keep Han Solo alive, but can it protect him from authors' derivative works?

• Author: Uptegrove, Micah
• Position: LAW SUMMARY

1. INTRODUCTION

   Over the past century, fictional characters have become extremely valuable; the Harry Potter films all together, for example, grossed $7.7 billion at the box office. (1) Even this huge sum is dwarfed by Marvel movies, which have brought in over $9 billion to date. (2) While these newer characters are fascinating, the classics still live on; one of the most memorable fictional characters of all time is Mickey Mouse, who had his debut in 1928 as Steamboat Willie. (3) In the past, Disney has worked diligently to protect its fictional characters, but copyright law does not offer perpetual protection. (4) In fact, Steamboat Willie would have first entered the public domain in 1956, but because of Disney's efforts, he is now protected until 2023. (5) The reason for this extended protection is buried in several acts of congress, including most recently the Mickey Mouse Protection Act or, officially, the Sonny Bono Copyright Term Extension Act of 1998 ("CTEA"). (6) The CTEA is pejoratively referred to as the Mickey Mouse Protection Act as a result of Disney's extensive lobbying support designed to prevent its early works from entering the public domain. (7) The late Sonny Bono introduced the CTEA, which extended copyright protection; his ultimate goal, however, was to extend copyright protection indefinitely. (8) Unfortunately for Bono, the Constitution prohibits perpetual copyright protection, a point his wife later conceded before the House of Representatives. (9) The fact that these fictional characters are so valuable, however, incentivizes companies to try to protect their works in a variety of different ways.

   Going forward, we will likely see companies attempting to further extend the duration of copyright, but constitutional constraints will incentivize businesses to seek the protection of other areas of law, such as trademarks for their fictional characters. In the future, we will likely see companies trying to further extend the duration of copyright, but we will also see different areas of law being applied to fictional characters. (10) One possible example of this may be how Disney has incorporated Mickey Mouse. Since Meet the Robinsons was released in 2007, Mickey Mouse has appeared at the beginning of every Walt Disney Animation Studios' production. (11) Disney including this short film before all of its new films may be in order to establish trademark protection for the clip. (12)

   There are several differences between the protection of graphical and literary characters, with those differences being especially profound when characters are created in one form of media but are then transferred to another. (13) A well-known example of this is the Harry Potter series, which consists of books that were then turned into movies. What happens when a character in the books is a "flat" character that does not have anything more than a generic personality but is transformed into a "round" character in the movie series? (14) Does the copyright for this new complex character originate in the book or instead in the later film adaptation? (15) These questions can also be resolved in different ways; notably there is also a difference in preventing someone from creating and selling copies of another's work and giving someone the right to create derivative works.

   This Note is meant to address the issues surrounding the rights copyright holders have in their characters and what rights they should be given. These existing rights are so valuable that it is likely that major companies such as Disney are going to continue to try to extend copyright duration; this method has worked repeatedly in the past to protect their fictional characters. (16) The extension of copyright duration through statutes is an attempt to navigate the issue that the U.S. Constitution technically only allows for copyrights to be protected for a "limited time." (17) If companies such as Disney can get a copyright term extension every few decades, they will essentially have created de facto perpetual copyright duration without violating the language of the Constitution. The right to create derivative works is also protection given by copyright law and it may be far more valuable to authors who wish to produce their works in a series. The U.S. Courts of Appeals decisions in Warner Bros. Entertainment, Inc. v. X One X Products and Klinger v. Conan Doyle Estate, however, seem to create a circuit split that complicates the issue of when other authors can begin to create derivative works. With copyrights protecting such a valuable industry there are some who argue for copyright duration to be extended indefinitely, (18) but there are also strong arguments against perpetual copyright duration premised on the relationship between copyright protection, competition, and creativity. (19)

   It is difficult to deny that copyright duration has an effect on creativity and competition, but as long as companies like Disney do not have an alternative method of protecting their fictional characters, they will continue to seek extended copyright duration. This then raises a question: What is it that companies like Disney are actually trying to protect, and is there some other way of protecting that interest without extending copyright protection? This Note takes the stance that what authors want to protect is the right to the use of their fictional characters in derivative works, and they would be willing to forgo fighting for statutory copyright duration extensions in exchange for this right. This stance is premised on the idea that copyright holders gain little income from their oldest works, such as the original Sherlock Holmes stories, but the right to create new movies and stories is extremely valuable.

   This Note looks to answer those questions and begins by analyzing the legal background of copyright protection in the United States in Part II. This is important because copyright protection has changed greatly since the Constitution was written, and it is possible that some of those changes have created problems that now need to be addressed. Part III discusses the recent developments in areas germane to copyright law as they pertain to fictional characters. This includes issues concerning what it means to create a derivative work, the right of publicity as it relates to fictional characters, and the limitations of trademark protection for characters. Part IV contains a discussion analyzing the split in the federal district courts, along with unique challenges associated with corporations as authors and owners of copyrights. Part IV concludes with a discussion of the constitutional limitations to copyright duration and proposed changes to copyright law.

2. LEGAL BACKGROUND

   This Part begins with an overview of the history of copyright law in the United States that, while not comprehensive, is intended to trace the development of copyright law and its application to fictional characters. It then describes how and when fictional characters are copyrightable in the first place, explores the concept of derivative work, and expands into a discussion of the right of publicity and its application to entities other than people. This Part then concludes with an overview of trademark law and its relevance for fictional characters.

   1. A Brief History of Copyright Law

      The United States has a long history of protecting copyrights, with the first copyright statute passed in Connecticut on January 29, 1783. (20) The 1783 statute provided the author of a book or pamphlet the exclusive right to print, publish, and vend the work in the state for a period of fourteen years from first publication. (21) In 1788, the U.S. Constitution was ratified and authorized copyright legislation: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (22) Later, Congress passed the Copyright Act of 1790, which gave authors of maps, charts, and books the sole right to print, reprint, publish, and vend their works for fourteen years. (23) The author was required to apply for the copyright, and if they were still alive when the copyright was expiring, he or she could renew the copyright protection one time for an additional fourteen years, totaling twenty-eight years overall. (24) The Copyright Act of 1909 then extended the duration to twenty-eight years from the date of publication with the possibility of one renewal of the same duration for a total of fifty-six years. (25)

      The next major change came with the Copyright Act of 1976 ("Act"), which extended the copyright duration to the life of the author plus fifty years. (26) Works for hire, anonymous works, and pseudonymous works were given a copyright term of seventy-five years. (27) Works copyrighted before the promulgation of the Act that had not yet entered the public domain had their extension term expanded from twenty-eight years to forty-seven years, giving them an effective copyright term of seventy-five years. (28) The Act also expanded the subject matter of copyright, with Section 102 extending protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (29) Qualifying works of authorship were expanded to include the following: literary, musical, dramatic, choreographic, pictorial, graphic, sculptural works along with motion pictures and other audiovisual works, and sound recordings. (30) Section 106 granted authors the exclusive right to reproduce, distribute, perform, and display the works along with the right to create derivative works. (31)

      The ("CTEA") further extended the copyright duration for new and existing works. (32) Under the CTEA, works with known authors were protected for the life of the author plus...