Distinguishing Literary Ideas and Expressions With Elements of Alternate Worlds

• Publication year: 2015

Distinguishing Literary Ideas and Expressions with Elements of Alternate Worlds

Joshua Jeng

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DISTINGUISHING LITERARY IDEAS AND EXPRESSIONS WITH ELEMENTS OF ALTERNATE WORLDS

Joshua Jeng^*

Table of Contents

I. Introduction.............................................................................................63

II. Law On Derivative Literary Works.................................................64

A. GENERAL DERIVATIVE WORKS COPYRIGHT LAW............................64
B. PROBLEM OF THE IDEA-EXPRESSION DICHOTOMY.........................66
C. EXISTING LAW DOES NOT HELP WITH LITERARY WORKS, ESPECIALLY DERIVATIVE ONES...........................................................67

1. Substantial Similarity is the Key, but It Does Not Fit the Literary Lock......................................................................................68
2. For Derivative Works, the Analysis Completely Falls Apart...............71

D. CONCLUSION...........................................................................................74

III. Copyright For Literature: Stories Are Alternate Worlds...........................................................................................................74

A. THE CONCEPT OF WORLDBUILDING AND INTERNAL CONSISTENCY..........................................................................................74
B. MAKING WORLD ELEMENTS THE LEGAL STANDARD AND ITS BENEFITS...........................................................................................77
C. EXAMPLE APPLICATION OF THE RULE WITH FAMILIAR WORKS......................................................................................................78
D. BENEFITS OF ADOPTING THE WORLD ELEMENT ANALYSIS...........81

1. Broadly Applicable, Useful Distinction................................................81
2. No More Conflicting Incentives............................................................81
3. Covers Troublesome Topics Under Traditional Law.............................82
4. Adoptable Under Existing Case Law.................................................83

E. CONCLUSION...........................................................................................84

IV. Fifty Shades of Grey—A Distinctly Different World..........85

A. CHARACTERS...........................................................................................85

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B. SETTING AND RULES..............................................................................88
C. PLOT AND CONFLICT.............................................................................89
D. THEME......................................................................................................89
E. CONCLUSION...........................................................................................90

V. Conclusion..................................................................................................90

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I. Introduction

One night after finishing his studies, a university student watches the movie Frozen and loves it. In fact, he loves it so much that he decides to write stories continuing Anna and Elsa's adventures. In a departure from the plot and setting of the movie, the author sends the sisters on an adventure to a land far removed from Arendelle in order to defeat a dragon. In a departure from the characters, he tweaks the personalities of the two, changes the gender of one, and even removes the relationship of sisterhood. Then, in the final departure, the author changes the name of all involved and begins to sell the story as an independent publication.

This raises a question: did the work, which clearly started as a derivative, ever become a separate, independent work?

Fans of various movies, stories, and television shows have always taken existing material and given them their own creative spin.¹ From artwork to new stories, the traditional one-directional flow of media content from company to consumer is rapidly changing as hundreds of thousands of users produce millions of derivative works, occasionally with great marketability.² Fifty Shades of Grey, originally a Twilight fanfiction known as Master of the Universe,³ was published as an independent novel that has sold over 100 million copies worldwide and spawned a movie adaptation that grossed over $560 million worldwide over a $40 million production budget.⁴ Whatever the book's title may be called, it is certainly fair to call it a lucrative, commercial success.

One question that does remain, however, is whether Twilight author Stephanie Meyer deserves to share in that commercial success. There is definitive evidence that Fifty began as an unauthorized derivative work, and numerous commentaries detail how Fifty is "crazy similar" to its source material,

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even after the revisions.⁵ What does this mean under copyright law? Unfortunately, given the ill-defined state of law on infringing literary works, especially in the realm of derivative material, the answer is unclear.

This Article aims to clarify that divide. In order to provide a useful guideline that incorporates existing copyright law with the logic inherent to literature, I propose that the divide between original and derivative works, and indeed between original and any potentially infringing work be determined by whether the subsequent works took literary expression as defined by elements that are distinct to the original author's literary "world." The following sections will outline the current state of law on copyright infringement for literature, elaborate on the proposed rule with example applications of its logic, and finally, conduct an analysis of the various literary elements to determine the relationship of Twilight to Fifty Shades of Grey.

II. Law On Derivative Literary Works

A. GENERAL DERIVATIVE WORKS COPYRIGHT LAW

In a broad sense, the Copyright Act of 1976 clearly marks the boundaries of derivative works. Defined in 17 U.S.C. § 101, a derivative work is anything "based upon one or more preexisting works."⁶ Copyright protection for derivative works means that the owner of the copyright has the exclusive right to prepare derivative works based upon said copyrighted work, subject to various exceptions outlined in §§ 107-122.⁷ The Act further specifies that individual components of the copyrighted work can also be protected, meaning that taking even parts of a preexisting work can result in infringement.⁸ Finally, the Copyright Act lays out the boundaries of protection for the derivative works by stating that (1) copyright protection does not extend to any material that has been used unlawfully,⁹ and (2) the author of a lawful derivative work can gain copyright protection for the derivative work, but only for material contributions, not the preexisting material used that makes the work derivative.¹⁰ In short, derivative work law can be summarized as such:

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1. If the work is based upon any part of preexisting material, the work is derivative.
2. If the work was not authorized by the original author, the deriving work is unlawful and thus, there is no copyright protection for that work.
3. If the work is authorized, there is protection for any material contributions.

While these are useful rules that any fanfiction author should know, the law is unfortunately silent on the most important part of the analysis: what does it mean for one work to be "based upon" another? Read broadly, a work that gets any sort of inspiration from an original work, even broad concepts and ideas can be considered "based upon" that work:

There are few . . . if any, things which, in an abstract sense, are strictly new and original throughout. . . . Virgil borrowed much from Homer; Bacon drew from earlier as well as contemporary minds; Coke exhausted all the known learning of his profession; and even Shakespeare and Milton . . . would be found to have gathered much from the abundant stores of current knowledge and classical studies in their days.¹¹

Such an expansive reading cannot be what Congress intended in writing the Act, as copyright law aims to "promote the Progress of Science and useful Arts,"¹² a purpose that would undoubtedly be hindered if the first person to express a broad concept could then preclude any other author from using that concept. This brings us to the idea-expression dichotomy, one of copyright's oldest dilemmas. Recognizing the difference between an abstract concept and the concrete way an individual could express that concept, copyright was crafted to protect the individual expression of an idea, not the idea itself.¹³ While the distinction between expression and idea remains unclear, the law developed to say that the more substantially a subsequent work resembles the original, the more likely a court is to find infringement. Thus, the key question still remains: where should that line of resemblance be drawn?¹⁴

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B. PROBLEM OF THE IDEA-EXPRESSION DICHOTOMY

In some cases, the distinction between idea and expression is far easier to draw than others. When North American Philips Consumer made its K.C. Munchkin game based on Atari's Pac Man, the court found that they had copied more than just the concept of a "gobbler." Instead, the court found that it had incorporated "several blatantly similar features, including the relative size and shape of the 'body,' the V-shaped 'mouth,' its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured."¹⁵ The court understood that there are many ways to use the concept of a character who travels around a game level eating objects. However, Atari had done so in a particular way, and it was that particular way that required protection.¹⁶

Similarly, the court found no independent expression by Durham Industries when it used Tomy Corp.'s Disney toys as the templates for its owns toys because there was "no independent creation, no distinguishable variation from preexisting...