COPYRIGHT 2000

Sample Student Essay Answers

For Use in Class on April 5, 2000

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SAMPLE ESSAY QUESTION 1

There are currently two tests that courts use to determine the copyrightability of characters independent from the work in which they appear. The first was created by Judge Learned Hand in Nichols v. Universal Pictures Corp., and the second is the test utilized by the Ninth Circuit, which first appeared in Warner Brothers v. Columbia Broadcasting System. The two tests [sic] main similarity is that neither provides a precise definition for when a character is copyrightable; however the tests are also different from each other.

Judge Hand’s test is known as the "The Specificity Test", and it considers whether the character is sufficiently developed to be copyrightable. The less developed the character, the less likely it is that it will be protectable. This means that a stock character is not protectable. While this test is the prevailing test, it lacks objectivity. The determination is one of judgment on the part of the court, and a litigant must persuade the judge that a character is sufficiently developed. Unfortunately, there are no specific standards as to when a character may be deemed sufficiently developed. The Nichols decision merely provided examples, such as "a vain and foppish steward who became amorous of his mistress" would not be protected under copyright law. Later cases have stated, however, that characters that are visual, such as cartoon characters, are more likely to be copyrightable because the visual element will aid in distinguishing them.

The Warner Brothers test also lacks sufficient specificity to guide courts with particularity. The test is known as "The Story Being Told Test". A court using this test must consider whether "the character really constitutes the story being told, or whether the character is only the chessman in the game of telling the story." This quote from the decision illustrates the confusion and the lack of precision that courts are faced with when they utilize this test. The test has been interpreted to mean that the character must be distinguishable from the plot and must not merely be present to advance the plot. However, it is difficult to explain how a character can be distinguishable from the plot, since a plot of a story necessarily involves the actions of the characters. In addition, the Central District of California in Walt Disney Productions v. Air Pirates voiced its displeasure with this test when it limited its applicability to literary characters.

It is difficult to explain, under both tests, when a character will be protectable and when it will not. This is testimony to the fact that the tests are imprecise. The Nichols test is more helpful to courts, because it focuses on the character itself, and the character development within the story, rather than on trying to extract the character from the plot, as the Warner Brothers test attempts to do. While characters are protectable under trademark, right of publicity, and unfair competition, their protection under copyright would be enhanced by a more precise test.

A test that courts might consider would take the approach that the Nichols test does and focus on the character itself, but would provide more specific criteria for protectability. This test could be known as the "Distinguishing Characteristic" test. Since copyright protects original works of authorship, a protectable character must be one that is original. A court should therefore focus on the original aspects of a character, and evaluate whether they are sufficient enough to warrant protection. The threshold for originality in copyright is not great, as was illustrated by the two-step test in Feist, where a work is protectable if it is an independent creation and possesses some minimal degree of creativity. Thus, courts must not be too strict in applying the Distinguishing Characteristics test. A court should first consider the character traits of the character. This would entail writing a description of the character. The court would then compare these characteristics to societal stereotypes. If the character is merely a repetition of common perceptions of groups of people, such as perceptions based on age, sex, or culture, then that character should not be protected because it lacks originality. However, if the character possesses traits that are distinguishable from common stereotypes, then it should be protected.

This test will allow courts and authors to better gauge when a character should be protected and when it should not. In addition, it is more reflective of the constitutional mandates of protection of original works of authorship.

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SAMPLE ESSAY 2

Considered less stringent, the Second Circuit’s Nichols "specificity" test states that the more developed the character, the more likely it is that the character is copyrightable. This test is intended to differentiate between fleshed-out characters and mere stock characters. In application, however, the test consists of no more than an issue of judgment on the relative merits of an individual case, and could very easily be outcome determinative.

Although the specificity test has become the majority view, the Warner Bros. "Story being told" test instead asks whether the character is only a vehicle for the story being told. This test looks at whether the work focuses on the development of the characters rather than intricate plot or story lines. Characters that may be sufficiently delineated under the Nichols test could perhaps fail this test because they would not be considered vehicles for the story. However, this test has been narrowed in subsequent cases so as to be applicable only to literary works.

The Warner Bros. Test appears to have caused much confusion. This legal standard would seem to provide copyright protection only where the story consists of all character development and no plot, a very stringent standard. However, when applied to more than one character, it may be difficult to determine whether the development of the characters constitutes the story being told or whether the interaction of the characters is in fact the plot, as it is in almost all literary works. This sort of confusion may cause a court to provide protection for all characters in a story, to the point where others may be precluded from incorporating certain characteristics in their own works.

Were I called on to apply a test to determine whether a character is copyrightable, I would base it on the Nichols test, with a slight modification. Because the debate on copyrightability seems to implicate the merger doctrine, I would ask whether a character has been sufficiently delineated so that allowing copyright protection would not preclude others from use of the underlying idea. If the character has not been definitively developed, would allowing protection effectively monopolize the idea of a character with stock characteristics. If so, I would deny copyright protection.