Scarecrow: Can you own the copyright to a character?
Scarecrow: So, Marvel doesnât own a the copyright to the character Captain America?
Scarecrow: And yet, Iâm certain that if I made my own Captain America movie, without Marvelâs permission, Iâd be liable for copyright infringement.
Scarecrow: So, if Marvel doesnât own the copyright to the character Captain America, but it's still copyright infringement to make a Captain America movie without their permission, then what does Marvel own?
Me: They own the copyright to every work that has Captain America in it. Since the character was introduced in Captain America Comics #1, every issue heâs appeared in has been copyrighted by Marvel (or Timely, or some other predecessor/successor to Marvel Comics).
Of course, Captain America has appeared in other media. Heâs been in things like cartoons, TV movies, Direct-to-Video movies, novels, etc⊠All of that has been copyrighted too. The terms of any given license (for example, a license to make a TV Movie) may give that copyright to someone other than Marvel, but theyâre still copyrighted by someone.
And even if, somehow, one work managed to fall into the public domain (though I personally know of no such thing wrt Cap) it would only be one work out of thousands.
Scarecrow: Okay. So whatâs a work?
Me: A work is what an author can claim copyright to. Once a work has been fixed in a tangible medium, the author owns the copyright to it.
Scarecrow: So, if Marvel, or CBS, or Paramount, or whoever only owns the copyright to an individual workâand not a characterâexplain how that makes writing a new Captain Kirk or Captain America story copyright infringement.
Me: Alright, so, one of the rights an author gets (and that includes corporate âauthorsâ like Marvel and CBS) is the right to make derivative works. When an author fixes a work in a tangible medium, the rights they get are listed in Title 17 U.S.C. §106. And one of those rights is the right to make derivative works.
Scarecrow: Whatâs a derivative work?
Me: A derivative work is a new work that is based on a previous work. So, an adaptation of a work from one medium to another would be a derivative work. The novelization of a movie, the movie of a book, and a licensed video game are all examples.
Other examples would be sequels or prequels. A novel that takes a minor character from another novel and makes them the main character would also be a derivative work.
Scarecrow: So a new work that uses a character from a copyrighted work is a derivative work?
Scarecrow: But that only raises more questions. Why doesnât Marvel own all patriotic superheroes?
Me: Good question, Scarecrow. Youâre fulfilling your role as straw man very well.
Me: Anyways, to answer the question, the reason is that you canât copyright an idea, only the expression of an idea. When an author fixes a work in a tangible medium, only that particular expression is protected by copyright.
This was actually an issue. MLJ, the forerunner of Archie Comics, have a patriotic superhero called the Shield that pre-dates Captain America. The owner of MLJ didnât like Captain Americaâs triangle shield, feeling that it looked to much like The Shieldâs crest. So, Marvel changed Captain Americaâs shield to the round one that heâs currently famous for.
Thatâs also why Simon and Kirby were able to make a comic called âFighting Americanâ after they left Marvel. Fighting American had to be different from Captain America, but the core idea of a patriotic superhero was still theirs to use.
Also, Fifty Shades of Grey doesnât infringe on Meyerâs copyright to the Twilight books because the characters, while based on Bella and Edward, are new and different. Sure, E.L. James used the names Bella and Edward at first, but she has since changed them and there was literally nothing else to connect the two works. And sheâs not the only fanfiction author to do this either.
Scarecrow: I think I have it. If someone owns the copyright to every appearance of a character, they essentially own the character. Right?
Me: For the most part. If someone owns the copyright to every appearance of a character, then that has the same effect as if you did, in fact, own a copyright in the character itself.
Scarecrow: What if an author only owned some of a characterâs appearances? How does that even happen?
Me: Dagnabbit Scarecrow, we agreed you were only going to ask easy questions.
Me: Iâm going to have to answer the second question, âHow can someone only own a few appearances of a character?â first. There are a number of ways that can happen:
Some of the authorâs works are old enough to have fallen into the public domain. (E.g. Sir Arthur Conan Doyleâs Sherlock Holmes, Edgar Rice Burroughsâ Tarzan)
The copyright holder failed to renew the copyright prior to Congress granting everyone an automatic extension. (E.g. Robert E. Howardâs Conan)
Due to the terms of a license agreement, an adaptation of a work is owned by a different copyright holder than the original (E.g., Macross/Robotech, GoBots) This can lead to some very legally confusing situations.
Expanding on the above, if a work has passed into the public domain, (e.g. Romeo and Juliet) then works based the public domain work are protected by copyright, but people are free to make their own works based on the public domain work. (E.g., Universal Monster Movies)
Me: Yeah, wow. And that just some of the situations. So, when one of these situations comes up, we need ask "who owns what?" Take Sherlock Holmes, for example.
Scarecrow: I like Sherlock Holmes, heâs smart.
Me: Thatâs why I picked him.
Arthur Conan Doyle wrote four novels and fifty-six short stories (not counting some minor parodies and couple of allusions) with Holmes. Because he started writing them in 1887, some of those stories are out of copyright here in the U.S. (Also, the U.S. didnât do a good job of protecting foreign works until the 1909 Copyright Act, but thatâs another thingâŠ)
Doyle continued to write Sherlock Holmes stories into 1927, when the last one was published. Stores registered or published from 1923 to 1927 are still under copyright. No canon Holmes story published prior to 1923 in the U.S. is under Copyright.
Scarecrow: But what if you wanted to write a new Sherlock Holmes story? Would doing so without permission be infringement?
Me: If your Sherlock Holmes story only used those elements from stories that arenât protected by copyright law, you're are fine. But, if you use elements from Sherlock Holmes stories that are under copyright, then you would be infringing.
Scarecrow: Let me get this straight, if some, but not all, of a characterâs appearances are in the public domain, then weâre free to make derivative works based on those appearances in the public domain. Right?
Scarecrow: But a derivative work based on a characterâs appearance in a work protected by copyright would be infringing?
If an author owns all the appearances of a character, itâs just like they owned the character itself. If an author doesnât own all the appearances of a character, because some of them are in the public domain, then people are free to make derivative works based on the public domain appearances.
This was confirmed in a recent case involving Sherlock Holmes.
Scarecrow: But what about cases where all the characters appearances are protected by copyright, but the copyright is held by different people/corporations?
It's a complex, and fact specific question. But, by and large, ownership of the copyright in those situations would be governed by the license agreement between the author of the original work and the author of the derivative work.
An author may license derivative works in only one medium, for example. Or they may maintain the rights to one medium, while selling the others.
Essentially, itâs up to the parties. Because of this, disagreements between them are more like contract disputes than copyright infringement.
Scarecrow: Alright then. But I see people make all kinds of derivative works on social media sites like DeviantArt and tumblr and Iâm sure none of them have permission to do so. Is that infringement?
Scarecrow: You just explained how people own the right to make derivative works for works that they own the copyright to, and the best you can do is âmaybeâ? Is there some exception you havenât covered yet?
Me: There is an exception. In fact, there are several exceptions to U.S. Copyright law. All the rights that a copyright holder gets are outlined in §106, but §§107-122 details all the exceptions to those rights. So yes, it is possible to make a derivative work of an authorâs copyrighted work without the authorâs permission.
Fair use, the exception detailed in §107 and expanded on in a number of important U.S. Supreme Court cases, is a messy thing. Itâs a four factor balancing test and it can yield unpredictable results.
Because of that, itâs difficult to say if âfan artâ in general is fair use or not, because the four factor balancing test is extremely fact specific. That said, past Supreme Court rulings have had the effect of categorically declaring some uses, like parody, as explicitly fair.
Unless, and until, fan art gets litigated, itâs impossible to say how much is really infringement.
Scarecrow: So, does this reasoning extend into things like setting?
Me: Pretty much. Again, itâs okay to copy an idea because only the expression of an idea is protected. Just like you canât copyright the idea of a detective that makes startling deductions based on simple observation, you canât copyright the idea of a military space ship exploring the galaxy.
Scarecrow: But that begs the question: When does an author cross the line from copying an idea to copying an expression?
Me: Thatâs an important, and fact intensive, question. The only way to answer that question is to look at the specific facts of a situation. There aren't a lot of general guidlines out there. The less you copy, the more likely it's an idea you're copying and not a particular expression.
Scarecrow: So who owns the copyright in a derivative work?
Me: Derivative works have their own copyright. Like all works, the copyright vests with the author of a derivative work when itâs fixed in a taxable medium. Because a copyright holder has the exclusive right to make, or to authorize the making of, derivative works, the copyright holder may give permission only on the condition that the copyright be assigned to original copyright holder and not the author of the new work.
Alternatively, the copyright holder may have a work for hire situation where they are considered the authors of the work. This is how companies like Marvel and Paramount work with their properties like Avengers and Star Trek. The difference between assignment and work for hire isnât really important here though.
Scarecrow: What if the derivative work isnât authorized?
Me: Thereâs a circuit split on is, but most likely if a derivative work infringes (e.g., isnât fair use) then the original copyright owner, not the author of the derivative work, would be owner of the copyright.
If a piece of fan art isnât infringing, the artist would own the copyright. If it infringes, then the company that owns the original work would be the most likely owner.
Of course that copyright would have the same exceptions and limitations as the original work. People can make fair use of the work, and the artist wouldn't necessarily be able to stop people from making fair use of the original work, even the result was similar to their work.
Scarecrow: Can I ask about trademarking a character?
Me: Sure, but thereâs no way Iâm answering that right now.
