Drawing idea from expression: creating a legal space for culturally appropriated literary characters.

• Author: Chung, Jacqueline Lai

TABLE OF CONTENTS I. AUTHORS' RIGHTS VERSUS READERS' RIGHTS A. The Author Argument B. The Reader Argument II. WHERE COPYRIGHT PROTECTION OF LITERARY CHARACTERS CURRENTLY STANDS III. FAIR USE CONSIDERATIONS IV. RECOGNIZING CULTURALLY APPROPRIATED CHARACTERS V. ANTICIPATING CRITICISMS TO THE DEFENSE OF CULTURAL APPROPRIATION CONCLUSION At a charity event in Radio City Music Hall in the summer of 2006, authors J.K. Rowling, Stephen King, and John Irving hosted a night with "Harry, Carrie, and Garp." (1) During this gathering, the authors held a discussion with the audience on the art of literary writing. In the months preceding the event, media publications had circulated news of a rumor that Rowling would kill off her wildly popular protagonist, Harry Potter, in the final installment of the Harry Potter series. (2) Rowling refused to confirm or deny the truth of the rumor at the charity event. King and Irving, however, pled openly with her to keep Harry alive--a sentiment most likely shared by the rest of the audience and the Harry Potter-reading public in general. (3)

Concern for the life of Harry Potter gives invested readers the incentive to take control of his destiny, in some sense, by creating their own versions of the Harry Potter story. Inspired by the frank discussion with Rowling, an audience member at the charity event might have gone home and penned her own piece of Harry Potter fan fiction in which the character lived to fight another day. (4) She might have posted her work to an online fan fiction archive, one of many sites already serving as a repository for the thousands of other fan-written renditions of Harry Potter. (5) It would not be surprising if Stephen King, John Irving, or Salman Rushdie (also present in the audience that day) contemplated the possibility of putting their own distinctive spins on the Harry Potter story. In anticipation of the final book's release, the New York Times also entered the fray by publishing four different "endings" to Harry Potter, as envisioned by four different writers. (6)

The creative contribution of secondary writers reflects the power of narrative in today's postmodern world of cultural production. A single storyline has the potential to explode into a multitude of different readings each founded upon the reader's unique perspective when encountering the text. (7) This power is also vested in literary characters, which exist within the narrative as the focal point for human identification. In the present cultural milieu, today's readers, as tomorrow's writers, are twisting and refashioning iconic literary characters to reflect their own insights and identities. Floating around various parts of the world are unauthorized renditions of a Harry Potter who is Indian, (8) Russian, (9) Chinese, (10) or still positively English but confused about his sexual orientation. (11) Imposing existing copyright laws onto a culture that is sharing, borrowing, and transforming artistic works at a rapid rate has become noticeably harder. This Note will address the ways in which the law should account for the sense of cultural entitlement that is encouraging readers to appropriate, recode, and inject literary characters into the social dialogue.

The legal question of ownership hangs somewhat ominously over the practice of unauthorized recoding and rewriting. U.S. copyright law grants ownership of the original and creative elements of a work to the original author. (12) Copyright ownership entitles the author to a set of exclusive rights, including the right to create derivative works. (13) Derivative works incorporate the original creation and transform it into a different work that may or may not be independently copyrightable. (14) Sequels, parodies, synopses, and translations are all examples of the kinds of derivative works that can spawn from the original. To the extent that literary characters are independently copyrightable, repurposing them into a new story or situation also leads to the creation of a derivative work. Barring a fair use defense, the unauthorized derivative use of an original work or character, not already in the public domain, may constitute a copyright violation. From a formal standpoint, fan-written Harry Potter adventures, no matter how innocuous, may be illegal reproductions of J.K. Rowling's original and protected work.

Learned Hand first suggested that literary characters could be independently copyrightable with his opinion in Nichols v. Universal Pictures Corp. (15) Under his "distinct delineation" test, any character that was sufficiently delineated, and not composed primarily of common elements from within the public domain, could be protected under copyright laws. (16) In Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc., the Ninth Circuit suggested that any character within a work that constituted the "story being told" could obtain copyright protection. (17) Protection under the "distinct delineation" test or the "story being told" test meant that the character could not be the subject of another derivative work without a license from the author. Current cases dealing with the infringement of copyrighted characters continue to determine protectability by drawing upon the Nichols and Warner Bros. standards. (18)

This Note argues that copyright law should create a legal space for derivative works that appropriate culturally iconic literary characters. Characters that have become valuable subjects of cultural dialogue should not be bound by the traditional benchmarks espoused in Nichols and Warner Bros., especially when doing so would stifle the creative contribution of secondary authors. Despite inroads in the fair use argument with respect to literary works and characters, fair use protection may still be too difficult to obtain or too limited in the type of repurposing that it affords. A better solution may be to revisit the existing copyright doctrine on literary characters and to question, in particular, the protectibility of these characters in the first place. Certain characters, though they may constitute original expressions, may each, nevertheless, have such ubiquitous cultural presences that it is more appropriate to consider them as collectively owned ideas. (19) If the concept of collective ownership is a more compelling model than the idea of the singular author, then barriers to secondary appropriation should be adjusted to reflect this new cultural reality.

Part I of this Note examines the existing debate on the appropriation of literary characters in derivative works--a debate often couched in terms of a battle between authors' rights and readers' rights. Part II outlines the current standards for copyright protection over literary characters, with a particular emphasis on the traditional Nichols standard for separating unprotectible ideas from protectible expression. Part III considers the ways in which secondary authors can avail themselves of the fair use defense. Part IV proposes a new immunity against infringement claims for culturally appropriated characters that are an integral part of the cultural dialogue. This concept, which recognizes iconic characters as culturally owned ideas, also draws from expression-protective concepts in trademark law. Finally, Part V responds to anticipated criticisms of the cultural appropriation defense, particularly addressing the ways that it harms the author's interest in controlling her creation, and, from the opposite end, the ways it fails to promote readers' interests in an adequate manner.

1. AUTHORS' RIGHTS VERSUS READERS' RIGHTS

   Under traditional notions of romantic authorship, the author's ascendancy in relationship to her work remains unquestioned. (20) The author serves as the key to the meaning in her creation. Postmodern constructions of literary theory, however, pit the author against her readers, with both parties vying for control over the meaning of the work. (21) The debate over the unauthorized recoding of characters is grounded in this larger debate between authors' rights and readers' rights. There are philosophical and cultural underpinnings to each side's claim for legal rights over the text.

   1. The Author Argument

      Three key principles support the argument for authors' rights and, by extension, the author's ability to maintain exclusive ownership and control over her literary characters. First, in the United States, an economic rationale for copyright protection seeks to maintain commercial incentives for authorial creation by allowing authors to benefit from a limited monopoly over their works. Second, as a result of the legacy of British intellectual property jurisprudence, authors are conditioned to believe that their works should exist as a property right. Finally, authors are also drawing from the influences of literary culture and European copyright law to claim a moral right over their characters. All of these principles focus on different elements of the author's role as a creator and seek to protect the rights of the author by drawing upon economics, property rights, or moral rights-based rationales.

      The Framers of the Constitution established a utilitarian foundation for copyright law in the United States. (22) The U.S. Constitution protects the author's economic rights over the work in order to "promote the [p]rogress of [s]cience and useful [a]rts." (23) This assurance of an exclusive right of economic return, even if only for a limited duration, ensures that authors will have an incentive to create original works that benefit the public. Moreover, the author's exclusive right to exploit various commercial markets also encourages her to disseminate her creations amongst society at large. Under utilitarian modes of thought, commercial reward, not internal inspiration, serves as the author's primary motivation to create. (24) The work becomes an economic interest for the duration that copyright protection is granted...