Happy 2019! Hope our followers had a safe and happy New Years (and more importantly made use of our Pop Up New Years Eve Sale). And now without further ado, onto a whole new year of book loving, bookselling, and book worship!
Copyright (literally meaning the right to copy) can be a slippery slope in terms of infringement. Where does one draw the line? Well, that is exactly what the last century has aimed at helping delineate. On realizing that characters, not just titles, can be taken and used for copies of original works, authors fought for characters, plots and fictional places to be copyrighted as well, to protect their interests. On January 6th, 1930, author of Winnie-the-Pooh A.A. Milne transferred exclusive merchandising and other rights of Pooh and the Thousand Acre Wood to Stephen Slesinger, who then in 1961 granted those same rights to Walt Disney Productions.
In the coming years, Slesinger would find faults with Disney and how they interpreted the somewhat vaguely worded contract, and would file lawsuits against the corporation. However, our blog is not meant to be a description of all the lawsuits between Stephen Slesinger and Walt Disney Productions. Rather, we would like to bring attention to what fiction copyright laws mean today and how infringement is decided.
In the United States, for a work to allow for copyright protection, it must meet certain regulations. It must be tangible (art, literature, etc.) and it must involve creativity – meaning that it must be an original work. The tangible aspect implies that facts and ideas are unable to be copyrighted – they must be put forth in a work of art or writing. Now, this is not quite as cut and dry as it seems. In fact, in the same year that A.A. Milne transferred rights to Mr. Slesinger, the United States held a court case deciding on the eligibility of fictional characters to be protected under copyright law – not merely as they are part of a larger work. In the case of Nichols v. Universal Pictures, two tests was developed to find whether characters were eligible for their own copyright. The first test was the well-delineated test – meaning that for a character to be copyrighted it needed to have a well-rounded personality and meaning in the story – for example, as characters James Bond and Tarzan pass this test, but an un-named poor factory worker (more of a stereotype) would not. The second test requires the character to be central to the storyline, and not merely a vessel for putting the plot forward. Sam Spade of the Maltese Falcon detective novels was found not to be copyrightable, as he was looked at as a vessel for storytelling, rather than as central to the plot. In terms of plot, for a copyright lawsuit to be made against an infringement a test must be made to prove the works as “substantially similar.” as the US Legal website states, “Though there is no ready-made yardstick as to what constitutes a “substantially similar” work, the basic test to determine whether a work is “substantially similar” to another is to see whether a person looking at the two works would believe the two works to be the same. This protects the author of a literary work from another person changing a few words here or there in a work and claiming it to be his own.” Amen to that – though unfortunately perhaps a bit vague.
In the basest terms, these days it is behooves an author to copyright their work. It cuts down significantly on time and expenses should there ever be an infringement on their creativity, and also “U.S. copyright law gives persons who register their works the option of recovering statutory damages for infringements which occur after the registration of the work, and not just the actual damages the copyright owner can prove he has suffered. Statutory damages are damages which the court can award without regard to the amount of damages which the copyright holder has suffered, or could prove he has suffered. In addition to an award of damages, a successful copyright infringement plaintiff may also obtain an injunction against further infringement by the defendant and, in appropriate circumstances, obtain the destruction of infringing copies of the copyrighted work.” As you can see, should you be worried about your characters or plot, it does make sense to register the work with the US Copyright Office.
There are so many aspects to copyright law – and these are just a few in terms of fictional character and plot! If you would like to read more about the history of copyright law, etc., we suggest checking out Copyright.USlegal and this timeline of the history of copyright in the US. To read more on the legal battles between Slesinger and Walt Disney Productions, read this article here.