The Game is On! – Episode 2

The Game is On!

Episode 2 – The Adventure of the Six Detectives

When Sherlock Holmes and John Watson receive a letter from Mary Westmacott, a new adventure at the border between illusion and reality is just about to start. Is Mary only having terrifying nightmares, is she losing her mind, or is she really being haunted by her own literary creations? If there is anyone who can solve the mystery, it is surely Sherlock Holmes. The Game is On!

Below you can find the related Case Files: supplementary educational materials providing points of discussion about copyright for teachers and students. In particular, these Case Files offer points of discussion around many of the most pressing copyright questions and concerns faced by screenwriters.

Case Files

  • 13. The Multiple Rights

    CaseFile_13Mary Westmacott is a freelance screenwriter; she writes scripts for films. Scripts are written works that contain the words of a film (or a play, television programme, video game, and so on), describing and narrating the movement, actions, expression, and dialogue of the characters. As the author of the script, Mary is the first owner of any copyright in it. However, the film based on Mary’s script constitutes a new copyright work with different owners, usually the producer and the principal director. Films often include various works created by different people and protected by copyright, such as texts, images and music.

    This Case File #13 investigates the multiple rights involved in a film, and the relationship between authorship of a work and the ownership of the copyright in that work.

     

    AUTHORS OF A FILM

    Section 9(1) of the Copyright Designs and Patents Act 1988 (the CDPA) tells us that an ‘author’ of a work is the person who creates the work. But many people work on a film, such as directors, producers, script writers, composers, camera operators, actors and more. So who creates a film? Is everyone involved in the creation of a film an author of that film?

    In certain circumstances, the law provides specific definitions about the authorship of certain types of work. For example, for a television broadcast, the author is defined as ‘the person making the broadcast’ (CDPA, s.9(2)(b)). In the UK, the legal authors of a film are the producer and the principal director of the film (CDPA, s.9(2)(ab)). Together, they are the joint authors of the work. The decision to grant authorship in this way reflects the idea that the producer and principal director are responsible for both financing the film and for exercising creative control over the film. Ultimately, everyone else who works on the film is working for the producer and the director.

     

    COPYRIGHT WORKS IN A FILM 

    Many different kinds of copyright works are brought together to make a film. A film includes not only the recorded visual element but also a written script, still images, music and more. Each of these works has an author who is the first owner of the copyright in the work.

    Often, these works are created specifically for the film. That is, they are commissioned by the producer and the director as part of the creative development of the film. Sometimes, however, these works might have been created long before the producer and director ever decided to make their film. In this case, the producer will clear rights to make use of the work; that is, she will negotiate with the copyright owner about making use of the work in the film, either by way of a licence or an assignment.

    For instance, if a director wanted to include a certain piece of music on the film’s soundtrack, the producer might agree to pay a fee to the person who owns the copyright in the music (also known as buying a licence). Normally, this will be the author of the music (so long as the author hasn’t sold or transferred their rights to someone else). Although the producer pays for a licence to make use of the music in the film, the copyright in the music remains with the copyright owner.

    Alternatively, the producer might buy the copyright to the music from the copyright owner outright (an assignment). In this case, the producer would become the owner of the copyright in the music and could use it on the film soundtrack or for any other purpose. After the original copyright owner assigns their copyright to the producer they no longer own any rights in the music.

    When making a film, the producer and director will need to make these kinds of negotiations for all the elements they want to include in the film. Depending on how and when contracts are negotiated, the authors of the film might own all of the different copyright works that also feature as part of the film, or they might simply have been granted a licence to make use of certain works, like the music, specifically for making the film.

    For further information about assignments and licences, see Case File #12.

     

    FOR DISCUSSION: REWARDING AUTHORS OR REWARDING INVESTORS?

    Copyright is often understood as a way of rewarding authors for their creative expressions. For this reason, the author is generally the first owner of the copyright in their work. However, if an author is creating work as an employee then the copyright in the work is presumed to belong to their employer.

    There are many people who make influential, creative decisions during the creation of a film including screenwriters and composers. If their contributions are sufficiently original, should they also be considered authors of the film? If so, is there a practical way for many people to have copyright in a film?

    Or is it more appropriate that only the producer and principal director of a film are defined in law as the authors and therefore copyright owners of a film?

    USEFUL REFERENCES

    You can find lots of information about licensing the use of works protected by copyright on various UK collecting society websites, such as Authors’ Licensing and Collecting Society, PRS for Music, DACS, and others.

    In particular, the Motion Picture Licensing Company’s website provides information about when or whether you need permission or a licence to show or play a film in public.

    If you are interested in films that are no longer in copyright (as well as links to those films) you could browse or search on Wikimedia Commons: https://commons.wikimedia.org/wiki/Category:Films_in_the_public_domain

    Please note that a work that is in the public domain in the US is not necessarily in the public domain in the UK as well (and vice versa). For further information, see Case File #2 and here: http://copyrightuser.org/topics/public-domain/

    Download the PDF version of Case File #13 – The Multiple Rights.

  • 14. The Missing Manuscript

    CaseFile_14The missing manuscript is the original script written by Mary and commissioned by Money Tree Productions. The term ‘original’ has different meanings depending on the context. In the film industry, an original script is usually considered a new story specially created for a film as opposed to an adaptation of an existing novel or play (see Case File #17). In copyright law, originality is one of the main requirements for many types of creative works to attract copyright protection.

    This Case File #14 considers the criteria required by UK copyright law for certain types of creative works to attract copyright protection, focusing on fixation and originality.

     

    FIXATION AND COPYRIGHT PROTECTION

    It is a general presumption of UK copyright law that works should exist in some permanent form before they will attract copyright protection. That is, they should be ‘fixed’. For most artistic works, such as a photograph, the point at which the work is created is also generally the point of fixation. But, this is not necessarily true for literary, dramatic or musical works. For example, a musician might improvise a new tune while performing on stage, without ever writing it down or recording it. Unless it is fixed, the improvised tune will not be protected by copyright. Indeed, UK copyright law expressly states that copyright will not exist in a literary, dramatic or musical work ‘unless and until it is recorded, in writing or otherwise’, although it does not matter whether the fixation is carried out by the author or by someone else. What matters is that the work is fixed.

     

    WHAT DOES ‘ORIGINALITY’ MEAN IN COPYRIGHT?

    In order to receive copyright protection, literary, dramatic, musical and artistic works must be original. Originality is a threshold for attaining copyright protection, meaning a work will not be eligible for copyright protection without it. However, the legislation says very little about what originality actually means. Therefore, what is original, for copyright purposes, is guided by facts and decisions from case law.

    In the UK, the courts have set a fairly low bar for satisfying the requirement of originality. They do not expect a work to be novel, inventive or even useful. Nor do they judge the quality of the work. In general, so long as the creation of the work involves some labour, skill, judgement or effort, the work will be considered to be original. However, it is important to note that not all types of labour, skill and judgement will be sufficient in a copyright context. For example, if the effort you have made in creating the work is very trivial or insignificant this will not be enough. Similarly, while it might require great skill to make an exact copy of a drawing or a painting, the copy that you make will not be protected by copyright. In this way, the originality requirement ensures that copyright protects only an author’s own intellectual creation.

     

    WHY REQUIRE ORIGINALITY?

    Copyright requires originality for several reasons. For one thing, it ensures that the work protected by copyright reflects the author’s personality and expression and that the effort the author expends in creating the work is substantial enough to justify legal protection. This also means that copyright protection is limited to each author’s expression, leaving non-original expressions and works free for others to use in the creation of new works: in this way, the originality requirement protects the creative and intellectual freedom of other creators. Additionally, as copyright protection depends on originality this maintains the incentive for authors to use their skills and efforts to keep making new works for the public to enjoy.

     

    THE CASE: LADBROKE v WILLIAM HILL (1964)

    This case involved a bookmaker, William Hill, bringing an action for copyright infringement of their betting slips (a ‘fixed odds football betting coupon’) against another bookmaker, Ladbroke. You can see copies of each bookmaker’s betting slips below.

     

    CaseFile_14_2

    Source: http://www.cipil.law.cam.ac.uk/virtual-museum/ladbroke-v-william-hill-1964-1-all-er-465

     

    In the Court of Appeal, William Hill argued that their betting slip could be considered to be a literary or an artistic work. Either way, they claimed, the work was original and so protected by copyright. The Court of Appeal rejected the argument that the betting slip was an artistic work, but decided that it was an original ‘compilation’ and as such it was protected by copyright as a literary work. The House of Lords agreed. Commenting on the ‘vast amount of skill, judgement, experience and work’ that had gone into creating the betting coupon, the House of Lords confirmed that the work was protected by copyright and that Ladbroke had infringed that copyright.

     

    FOR DISCUSSION: PUBLIC ART OR PRIVATE RIGHTS?

    Art galleries and museums often take photographs of works of art within their collection and then claim that the photograph is protected by copyright, even when the work of art itself is no longer in copyright. That is, while the artworks themselves are in the public domain, the galleries claim copyright in their photographs of those works (see also Case File #2).

    Why do you think galleries and museums claim copyright in photographs of existing works of art? Should these photographs be protected by copyright? Are they original?

    USEFUL REFERENCES

    For further discussion of the decision in Ladbroke v. William Hill [1964] 1 All ER 456 see here: http://www.cipil.law.cam.ac.uk/virtual-museum/ladbroke-v-william-hill-1964-1-all-er-465

    For further information about the concept of the public domain, see here: http://copyrightuser.org/topics/public-domain/

    Download the PDF version of Case File #14 – The Missing Manuscript.

  • 15. The Dream Job

    CaseFile_15Mary accepts a commission to write ‘an original script’ for ‘a film about a missing boy,’ not just for the ‘intriguing premise’ but also because ‘for once the contract terms were great; a dream job that would pay the bills for many years’.

    Contracts play a crucial role in relation to copyright and the way creative works are exploited commercially and authors remunerated. This Case File #15 explores various issues of importance for screenwriters and other authors when negotiating and signing contracts relating to the use of their work.

     

    CONTRACTS

    A contract is formed when a voluntary arrangement is made between two (or more) parties in which one party makes an offer which the other party formally accepts. The contract protects the interests of each party by setting out clearly the specific terms governing the agreement and the various rights and obligations of each party.

    When a screenwriter signs a contract with a film production company she might assign the rights in her work to the company or license the use of the work under certain conditions (see Case File #12). But in addition to setting out who owns or can make use of the copyright in the work, contracts can also address a number of other issues. For example, a contract between a writer and a film company might contain details about the deadline for delivery of a script, or what type of remuneration is to be paid for the use of the work and when, or it might contain an agreement about the creation of derivative works and future obligations (such as who will be involved in producing sequels or adaptations in other formats like a book, video game or television).

    Case File_15_2

    Contracts can also include terms that forbid certain types of activity. For example, a screenwriter might sign a contract with a famous production company to turn her script into a film. That contract might include a term that prevents the company from selling on its right to make the film to another less well-known film production company without her permission. This gives the author a degree of control over who produces her script should the famous film production company decide not to make the film for some reason.

    Whatever terms it contains, it is important to remember that contracts are legal documents: they are legally binding and can be enforced in a court of law. Failure to perform a contract could result in legal liability. As such, parties should always make sure they understand the full implications of a contract before signing.

     

    RIGHT TO REMUNERATION

    The right to remuneration is the right to receive payment in exchange for work or services performed. The scope of the payment is defined by the contract.

    For example, a screenwriter might decide to accept a ‘buy out’ for her work. Essentially, this means that she accepts a one-time payment for her script and waives the right to any remuneration from the future exploitation of her work. Should the film become a blockbuster, the screenwriter might seriously regret her decision.

    By contrast, the contract might entitle the writer to payment for delivery of the script as well as additional payments for future exploitation, for example, through DVD sales, online distribution of the film, and so on. This type of arrangement protects the author’s economic interests in other types of use and exploitation of the work.

     

    PROTECTING THE RIGHT TO REMUNERATION: THE C.R.E.A.T.O.R. CAMPAIGN

    Screenwriters are not always in a position to negotiate favourable contract terms when dealing with an influential or well-established film production company. For example, an inexperienced or unknown writer might feel compelled to accept less favourable terms in order to get her script produced by the company. In this type of situation, it is said the two parties do not have ‘equal bargaining power’.

    The Society of Authors is an organisation that protects the rights and campaigns for the interests of all types of authors. In July 2015, they launched the C.R.E.A.T.O.R. Campaign for Fair Contracts to help ensure that the contracts offered to authors are reasonable and balanced. One of the key principles of the C.R.E.A.T.O.R. campaign concerns fair remuneration for authors. That is, writers should enjoy fair remuneration for all forms of exploitation of the work that they create, not just one-off upfront payments. Put another way, creators should be fairly paid at all stages of a work’s development and commercial exploitation.

    In addition to the right of remuneration, the C.R.E.A.T.O.R. campaign provides guidance on a number of other issues of particular importance to authors. These include:

    • Clear contract terms that set out the exact scope of the rights granted under the contract
    • Reasonableness in all contractual provisions
    • Unwaivable economic and moral rights for authors

    You can find out more about the C.R.E.A.T.O.R. Campaign for Fair Contracts here: http://www.societyofauthors.org/Where-We-Stand/C-R-E-A-T-O-R-Campaign-for-Fair-Contracts

     

    WAIVABLE AND UNWAIVABLE RIGHTS

    During contract negotiations, an author may decide to waive certain of her rights for various reasons. For example, an author may waive any right to royalties during the future exploitation of the work in favour of receiving a larger upfront payment. Alternatively, they might have been offered the contract on a take-it-or-leave-it-basis and don’t feel in a position to negotiate better contract terms.

    It has often been argued there are certain rights, whether economic or moral, that should always remain with the author, and that the author should not be able to contract them away. When a right cannot be contracted away it is said to be ‘unwaivable,’ meaning it always remains with the creator of the work and cannot be exercised by anyone else.

    The C.R.E.A.T.O.R. campaign advocates that an author’s right to future remuneration for all forms of exploitation of their work should be unwaivable under the law.

    The Society of Audiovisual Authors (the SAA), an organisation that was established in 2010 to represent the interests of screenwriters and directors, believe that authors should be financially rewarded in line with the successful exploitation of their works. Similar to the C.R.E.A.T.O.R. campaign, the SAA argue that authors should enjoy an unwaivable right to remuneration, based on revenues generated from the online distribution and use of their work.

    There is a strong argument for making certain economic rights unwaivable. For one thing, it would help improve an author’s negotiating position when dealing with large multinational publishers or film production companies. If certain rights are deemed unwaivable by law, they are unable to be contracted away and will remain with the creator.

     

    FOR DISCUSSION: WAVING RIGHTS GOODBYE?

    In addition to the right to remuneration, the C.R.E.A.T.O.R. principles also suggest that an author’s moral rights should be unwaivable. In the UK, moral rights (or non-economic rights) include the right to be identified as the author of the work (the right of attribution) and the right not to have your work subjected to ‘derogatory treatment’ (the right of integrity). In many countries, these moral rights are already unwaivable, but not in the UK. For further information about moral rights, see Case File #11.

    Why do you think a publisher or a film producer would want an author to waive her moral rights of attribution or integrity?

    If you had to choose between making either economic rights or moral rights legally unwaivable, which would you choose and why?

    USEFUL REFERENCES

    For further information about the C.R.E.A.T.O.R. Campaign for Fair Contracts, see here: http://www.societyofauthors.org/creator-campaign-fair-contracts

    For further information about the Society of Audiovisual Authors (SAA), see here: http://www.saa-authors.eu/

    If you are interested in screenwriting, the Writers’ Guild of Great Britain produce a helpful guide to the role that writers play in the film making process, as well as the principles and terminology of traditional contracts for screenwriters. Writing Film: A Good Practice Guide is available here:

    https://writersguild.org.uk/wp-content/uploads/2015/02/WG_film_Oct09_LR.pdf

    Download the PDF version of Case File #145- The Dream Job.

  • 16. The Pantages

    CaseFile_16

    When Mary sees Lord Vane at the entrance of the Pantages theatre, there is a paperboy distributing copies of the Evening Paper with the headline ‘The Suicide of the sculptor Harkin and tonight’s play at the Pantages’. This is a reference to Each In His Own Way, a work by the Italian playwright Luigi Pirandello (1867 – 1936). Each In His Own Way is a play about the production of a play based on ‘real’ events.

    Producing creative works based on real facts and events raises interesting questions about the complex relationship between reality and artistic expression, and the role that copyright plays. This relationship is further complicated when a work draws upon copyright works made by another author. Some of these questions are explored and discussed within this Case File #16. 

     

    NON-COPYRIGHTABLE MATERIALS

    As discussed in previous case files (see for example Case File #7, copyright does not protect an idea. In addition, copyright does not protect other materials like data, information, facts, and the details of historic events.

    Even so, there may be situations in which an author takes these materials and reworks them into a creative work that attracts copyright protection. Consider the life of Henry VIII. The facts and events surrounding his life are not copyrightable, but the original way in which someone might turn them into a book or movie is copyrightable. Several examples of this exist: the television show The Tudors, the novel Wolf Hall by the award-winning author Hilary Mantel, and the National Geographic documentary ‘The Madness of Henry VIII.’ In each instance, the author enjoys copyright in their creative work, but the underlying information and facts remain available for anyone to use.

    This is also briefly explored in Case File #18 in relation to the lawsuit about Dan Brown’s blockbuster thriller, The Da Vinci Code. It was alleged that Mr Brown had copied substantial material from an earlier book The Holy Blood and the Holy Grail. Mr Brown disagreed, arguing that he simply copied information, facts and ideas from the other book. For details of how the case was resolved, see Case File #18.

     

    INFLUENCE AND APPROPRIATION

    Authors do not create their work in a vacuum. They often have similar ideas and are influenced by the ideas of others when creating new works. In itself, this is not a bad thing. Indeed, copying can be very creative, and creativity often involves copying. What is important is that the copying is lawful and does not infringe another author’s rights. Ideas, though, are not protected by copyright.

    For example, imagine a movie in which a group of social outcasts travels the galaxy to fight evil and save the universe.

    Do you have a one in mind? Is it Star Wars? Galaxy Quest? The Hitchhiker’s Guide to the Galaxy? Guardians of the Galaxy? Each is based on a common premise or idea, but the films themselves are very different and benefit from each creator’s own personal expression. At the same time, the basic underlying science-fiction plot remains available for others to use to create new works, so long as the new work does not copy a substantial or whole part of one of the earlier films.

    But what about when an author does want to make use of someone else’s work in creating something new? In doing so, the author might incorporate certain aspects of another work – or even the entire work – in her creation. This is often referred to as ‘appropriation’, or the use of pre-existing works, sometimes with little to no transformation. Appropriation involves ‘borrowing’ creations from other authors and including or assimilating them into new works.

    Indeed, many authors consider themselves to be ‘appropriation artists,’ meaning they create new works which intentionally draw on the works of others. Doing so is considered key to the artists’ concept for making the work: they create new work by recontextualising the existing work. The works created by appropriation artists may well be eligible for copyright protection, however, some question whether appropriation art is sufficiently original to enjoy copyright protection at all.

     

    FOR DISCUSSION: APPROPRIATE APPROPRIATION?

    So, what happens when an author appropriates another author’s copyright work into a new creation? In some cases, things can get quite controversial as to where inspiration ends and plagiarism or copyright infringement begins (see for example Case File #18).

    CaseFile_16_2Tony Roberts’ Double Star and Glenn Brown’s The Loves of Shepherds, available at How to Understand Why an Awesome Book Cover Became Expensive Fine Art, by Charlie Jane Anders, http://io9.gizmodo.com/how-to-understand-why-an-awesome-book-cover-became-expe-1497969800

    Consider the two images above. The image on the left is an illustration by Antony Roberts for the cover of Robert A. Heinlein’s novel Doublestar, published in 1974. The image on the right is a 2000 Turner Prize nominated work by Glenn Brown, titled ‘The Loves of Shepherds.’ In the Turner Prize catalogue, Brown’s entry made no reference to Robert’s illustration or Heinlein’s novel. At first glance, it might seem that the image on the right has simply ‘copied’ the other. Others might describe this as creative appropriation.

    Indeed, appropriation is at the heart of Brown’s work. Brown meticulously recreates images ‘borrowed’ from art and popular culture by transforming the appropriated image, whether changing its colour, position, orientation, mood or size. Brown begins by importing the original image into an image editing programme like Photoshop and alters the image and its subject matter to form his desired composition. He then paints the image by painstakingly applying thin layers of paint to a canvas. The process produces a painting with a mirror-smooth surface which, in some cases, can take more than a year to create.

    In order to receive copyright protection under UK law, literary, dramatic, musical and artistic works must be original and, in general, so long as the creation of the work involves some labour, skill, judgement or effort, the work will be considered to be original. However, when dealing with works that expressly copy from an existing work, satisfying the originality criterion may not be so straightforward. For example, in the case of Interlego AG v. Tyco Industries Inc (1989) Lord Oliver commented as follows: ‘copying per se, however much skill or labour may be devoted to the process, cannot make a work original’. He continued: ‘[A] well executed tracing is the result of much labour and skill but remains what it is, a tracing’. In relation to artistic works, he considered, the change in the work must be ‘visually significant’; there must be ‘some element of material alteration or embellishment’ to make the new work an original work.

    Based on this premise, do you think Brown’s appropriation is ‘original’? To follow that, even if it is, do you think Brown’s appropriation infringes on Roberts’ copyright?

    Brown has appropriated works from other science-fiction illustration artists, such as Chris Foss.

    CaseFile_16_3Chris Foss’ Stars Like Dust and Glenn Brown’s Ornamental Despair, available at How a Science Fiction Book Cover Became a $5.7 Million Painting, by Charlie Jane Anders, http://io9.gizmodo.com/how-a-science-fiction-book-cover-became-a-5-7-million-1497486808

    Chris Foss’ Floating Cities and Glenn Brown’s Bocklin’s Tomb, available at How a Science Fiction Book Cover Became a $5.7 Million Painting, by Charlie Jane Anders, http://io9.gizmodo.com/how-a-science-fiction-book-cover-became-a-5-7-million-1497486808

    Both images on the left are by Chris Foss. Both images on the right are by Glenn Brown. Foss originally gave Brown permission to remix his work, but later became upset when he saw the final result. Indeed, both Roberts and Foss have expressed frustration with Brown’s appropriations. Roberts feels, ‘None of this would have been possible without my painting.’ Foss has also questioned the fairness of Brown’s use of his imagery because, although Foss created the original image, ‘this man gets all this kudos from basically lovingly repainting it.’

    Brown has appropriated works of other artists, like Salvador Dali and Rembrandt. His work and technique draws on a long history of appropriation by other artists, like Picasso and Warhol, stressing the importance of appropriation in his own work and in seeking to make the relationship with art history as obvious as possible. Brown defends his work, saying his versions never look like the originals due to the alteration in colour, the difference in scale, redrawing, and embellishments. Indeed, many would advise witnessing the paintings in person to fully appreciate the scale of Brown’s work.

    What do you think?

     

    USEFUL REFERENCES

    For useful information on the creative re-use of public domain works, see: www.create.ac.uk.

    For a resource to help you calculate whether a work is in the public domain in the UK or other EU Member States, see www.outofcopyright.eu.

    For more information on Glenn Brown’s works see http://www.independent.co.uk/arts-entertainment/art/features/a-real-scene-stealer-glenn-browns-second-hand-art-is-the-subject-of-a-tate-retrospective-1622648.html#gallery.

    For more information on Chris Foss’ see http://www.newyorker.com/culture/culture-desk/the-5-7-million-magazine-illustration.

    Download the PDF version of Case File #16 – The Pantages.

  • 17. The Typewriter

    CaseFile_17

    The design of the typewriter that Mary uses to write her scripts was inspired by Jack Torrance’s typewriter in Stanley Kubrick’s The Shining. Famously, Kubrick’s The Shining is a film adaptation of Stephen King’s novel with the same title. In fact, The Adventure of the Six Detectives includes numerous references to and quotations from famous film and theatrical adaptations of literary works, and is itself an homage to those creative works.

    This Case File #17 illustrates the conditions under which an adaptation of an existing work can be created, and examines the copyright status of original works and their adaptations.

     

    ADAPTATION AND COPYRIGHT IN THE DERIVATIVE WORK

    A lot of creative works are adapted from other works. The film industry provides many examples of this: movies are often adapted from short stories, books and plays. This is made possible through a licence: the filmmaker obtains permission to adapt a story from the copyright owner through the licence. However, both the film and the work upon which it was based are two freestanding copyright works in their own right.

    To illustrate, Stephen King published the novel The Shining in 1977. Three years later, Stanley Kubrick released his popular film adaptation of the book under the same title. To do so, Kubrick negotiated a licence to adapt King’s novel for the big screen. Both the book and the movie are protected by their own independent copyright.

    In addition, the copyright in the original work remains separate from the copyright in the adaptation, and vice versa. For example, with regards to The Shining, while the copyright in the novel will expire 70 years after Stephen King’s death the duration of copyright in the film adaptation has got nothing to do with Stephen King at all.

     

    THE ADAPTATION RIGHT AND ITS LIMITS

     Under UK copyright law, authors are granted a bundle of different economic rights in their work. All authors are granted the reproduction right: that is, the right to control how and when copies of their work are made. The other rights that make up the ‘copyright bundle’ are the distribution right, the rental right, the public performance right, the communication right, and the adaptation right. However, not all of these economic rights are granted to all types of copyright owner. What rights the copyright owner will have will depend on the type of work in question. So, for example, the public performance right does not apply to works of art.

    In the UK the adaptation right only applies to literary, dramatic and musical works, not to artistic works, sound recordings, films or broadcasts. Moreover, the CDPA defines the concept of adaptation differently depending on the type of work concerned. For example, for literary works the adaptation right is defined to include turning a novel into a film, translating a work into another language, or converting a computer program into a different language or code. For a musical work, the adaptation right includes making a new arrangement of the work or making a transcription of the work for new instruments or voices.

    It may seem unfair that some creators – such as writers, playwrights and musicians – are granted an adaptation right under UK copyright law, whereas other creators such as artists and filmmakers are not. In reality, however, making an adaptation of someone’s work will almost always involve copying that work which will, in any event, fall within the scope of the reproduction right (the right to prevent someone copying your work). Indeed, the line between reproduction and adaptation is not always easy to draw.

    Imagine, for example, rewriting a popular novel for a new audience of primary school children, shortening it in length and making the language more age appropriate. Technically speaking, under UK copyright law, this is not an adaptation (as it does not fall within the narrowly defined adaptation right). But it will infringe the author’s reproduction right (unless, of course, the relevant permissions have been granted).

    FOR DISCUSSION: TO ADAPT OR NOT TO ADAPT? 

    The works of William Shakespeare are in the public domain. Many films have produced or adapted his plays; some have even used Shakespeare himself as a character. Films which reproduce his plays include Franco Zeffirelli’s ‘Romeo and Juliet’ in 1968 and Baz Luhrmann’s ‘Romeo + Juliet’ in 1996. Others films might adapt Shakespeare’s plays and take another name, such the 1999 adaptation of ‘The Taming of the Shrew’ called ‘10 Things I Hate About You’. Another film, ‘Shakespeare in Love’, is a fictional story about his romance with noblewoman, and features performances of Shakespeare’s plays throughout the film.

    CaseFile_17_2From left to right:
    Romeo and Juliet (1968), directed by Franco Zeffirelli and produced by BHE Films, Verona Produzione and Dino de Laurentiis Cinematografica.
    Romeo + Juliet (1996), directed by Baz Luhrmann and produced by Bazmark Films and Twentieth Century Fox Film Corporation.
    10 Things I Hate About You (1999), directed by Gil Junger and produced by Touchstone Pictures, Mad Chance and Jaret Entertainment.
    Shakespeare in Love (1998), directed by John Madden and produced by Universal Pictures, Miramax and The Bedford Falls Company.

    Can you think of other adaptations of Shakespeare’s works?

    Apart from the continuing appeal of Shakespeare’s stories, one reason for adapting his work is that all of those stories are in the public domain: that is, anyone can make use of his work without having to ask or pay for permission. It is all out of copyright. Can you think of any other television or screen adaptations you have seen that might also be based on a public domain work? How do you know when a work is out of copyright (see, for example, Case File #2)?

    USEFUL REFERENCES

    The definition of adaptation provided by UK copyright law can be found in Section 21(3) of the Copyright Designs and Patents Act 1988: http://www.legislation.gov.uk/ukpga/1988/48/section/21

    For further information on copyright duration in the UK, see Copyright Bite #1 – Copyright Duration: http://copyrightuser.org/copyright-bites/1-copyright-duration/

    Download the PDF version of Case File #17 – The Typewriter.

  • 18. The Purloined Letters

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    Before she was murdered, Mary Westmacott had become increasingly concerned for her safety and state of mind. In her letter to Holmes she describes how, one night, she was woken by the sound of someone working at her typewriter but when she got downstairs there was nothing to be found except three words on the page: ‘Where’s My Story?’ The precise meaning of these words is ambiguous but they seem to hint at an accusation of plagiarism: in producing her script for the film about the missing boy, has Mary stolen someone else’s ideas or story?

    This Case File #18 considers the similarities and differences between plagiarism and copyright infringement, two concepts that are often discussed as if they were one and the same.

     

    PLAGIARISM AND COPYRIGHT INFRINGEMENT

    Plagiarism occurs when you present someone else’s thoughts, ideas or expression as if they were your own, without properly attributing the original author of the work. Copyright infringement occurs when you make use of an author’s copyright work, without their permission, in a way that is expressly prohibited by law.

    People often discuss plagiarism and copyright infringement as if they were one and the same thing, but that is misleading. It is true that both plagiarism and copyright infringement concern inappropriate copying but it is important not to confuse the two concepts.

    Plagiarism can occur without infringing copyright, just as someone can infringe copyright without plagiarising the original author’s work. At the same time, if someone copies your work and then presents it as if it was their own they may be guilty of both plagiarism and copyright infringement. Everything will depend on the facts and circumstances of each particular case.

    One of the main differences between these two concepts is that plagiarism always involves one person attempting to present someone else’s thoughts, ideas or expressions as if they were their own original work. That is, the copier claims to be the original author of those ideas or that work. By contrast, many people infringe copyright without ever claiming to be the author of the work they are copying. For example, if you download a film or an ebook from an unauthorised website rather than accessing that content legally online you are infringing copyright in that work. But this has absolutely nothing to do with plagiarism. By unlawfully downloading the work you are not claiming to be the author of that work.

    Also, whereas copyright infringement might result in someone taking or threatening to take legal action against you, an accusation of plagiarism rarely gives rise to litigation. In short, we might say that while plagiarism is unethical or is a moral wrong, copyright infringement is a legal wrong.

     

    PLAGIARISM BUT NO COPYRIGHT INFRINGEMENT: COPYING IDEAS

    Imagine you have created an original poem, picture or story, and that someone copies your idea to create their own work. Why might this be plagiarism but not copyright infringement?

    A basic principle of copyright law is that copyright does not protect ideas, only the way in which those ideas have been expressed by the author of a work. For this reason, while copying someone’s ideas without properly acknowledging the source may be regarded as plagiarism, it will not necessarily amount to copyright infringement. That is, if the plagiarist copies ideas but not the way in which you expressed your ideas – for example, by using your actual words – then they are not infringing copyright.

    So, from a copyright perspective, ideas are free to be used and reused. But you should always be careful to acknowledge the source of your ideas whenever appropriate. Nobody wants to be accused of being a plagiarist!

     

    PLAGIARISM BUT NO COPYRIGHT INFRINGEMENT: COPYING PUBLIC DOMAIN WORKS

     Imagine that someone has copied both the ideas and exact expression of another author’s work. For example, they might have copied another person’s poem and they are trying to pass it off as their own work, whether to their friends and family, to their teacher or classmates, or to the wider world. This is plagiarism. But is it also copyright infringement?

    Whether copyright in the poem is infringed will depend, among other things, on whether the original work is still in copyright or not. For example, imagine the work was first written by one of the many poets who died during the First World War: Julian Grenfell (1888 –1915), John McCrea (1872 – 1918) or Wilfrid Owen (1893 – 1918). Their work is no longer in copyright; it is now in the public domain. So, from a copyright perspective, everyone is free to copy these poems without the need for permission. Just don’t be tempted to pretend that you have written any of these works yourself, or any other work that is in the public domain. Nobody wants to be accused of being a plagiarist!

     

    PLAGIARISM, REAL AND IMAGINED

    Many famous writers, musicians, journalists and politicians have been accused of plagiarism.  Some accusations turn out to be true, but not every allegation of plagiarism is well-founded or fair.

    Adrian Jacobs was a children’s author who died in 1997. In 2004 those responsible for managing his literary estate claimed that the plot of J.K. Rowling’s novel Harry Potter and the Goblet of Fire bore a number of similarities to a book first published by Jacobs in 1987: The Adventures of Willy the Wizard. Ultimately, the case against Rowling was dismissed by the UK courts. The literary estate also attempted to sue Rowling in a number of other countries, such as Australia and the US, but in each case they were unsuccessful.

    Kaavya Viswanathan, a young American author, published her first book – How Opal Mehta Got Kissed, Got Wild, and Got a Life – in 2006, just as she was beginning her studies as an undergraduate student at Harvard University. Soon after, allegations of plagiarism began to emerge, and it transpired that portions of the Viswanathan’s book had relied on a number of other sources, including two books by Megan McCafferty – Sloppy Firsts (2001) and Second Helpings (2003) – as well as works by Salman Rushdie, Sophie Kinsella and Meg Cabot. The publisher recalled and destroyed all copies of Opal Mehta and cancelled their contract with Viswanathan for a second book.

     

    UNCONSCIOUS PLAGIARISM 

    Cryptomnesia is a term that describes the phenomenon of having a thought that we think is original when in fact it is no more than a memory. In other words, it helps to explain what is often referred to as unconscious plagiarism. That is, sometimes we are not always aware that we are copying someone else’s work: sometimes we copy unconsciously.

     

    THE CASE: Baigent v. Random House [2007] EWCA Civ 247

    The claimants were the authors of a book published in 1982, The Holy Blood and the Holy Grail. They alleged that Dan Brown had infringed their copyright by incorporating a substantial part of their work within six chapters of The Da Vinci Code, Brown’s blockbuster thriller first published in 2003. Mr Brown’s publisher disagreed. If Mr Brown copied anything, they argued, he simply copied information, facts and ideas from The Holy Blood and the Holy Grail, rather than the way in which the authors had expressed their ideas.

    The case was settled in favour of Mr Brown.

    In the Court of Appeal, Lord Justice Mummery commented that the material alleged to have been copied from the claimants’ book was simply an assortment of historical fact and information, events, incidents, theories and arguments: this was raw research material and nothing more. The claimants were not entitled to rely on copyright law to ‘monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material’. No copyright infringement had occurred.

    When the final decision of the Court of Appeal was handed down, the case was widely reported in the press as a case about plagiarism. But is it really about plagiarism? Or was it simply a case about copyright infringement? Or is it about both plagiarism and copyright infringement? Is it okay to copy information, facts and ideas from someone else’s work?

    FOR DISCUSSION: POLITICS AND PLAGIARISM

    During the 2016 US presidential election, Melania Trump, wife of the Republican candidate Donald Trump, gave a campaign speech that appeared to borrow from a speech given by Michelle Obama at the 2008 Democratic Convention. The relevant extracts from each speech are set out in the table below. You can also view clips from each speech here.

    Michelle Obama (2008) Melania Trump (2016)
    And Barack and I were raised with so many of the same values: that you work hard for what you want in life; that your word is your bond and you do what you say you’re going to do; that you treat people with dignity and respect, even if you don’t know them, and even if you don’t agree with them. From a young age, my parents impressed on me the values that you work hard for what you want in life, that your word is your bond and you do what you say and keep your promise, that you treat people with respect. They taught and showed me values and morals in their daily lives. That is the lesson that I continue to pass on to our son.
    And Barack and I set out to build lives guided by these values, and pass them on to the next generation. And we need to pass those lessons on to the many generations to follow.
    Because we want our children – and all children in this nation – to know that the only limit to the height of your achievements is the reach of your dreams and your willingness to work for them. Because we want our children in this nation to know that the only limit to your achievements is the strength of your dreams and your willingness to work for them.

    Following the speech, and various allegations of plagiarism, the Trump campaign released a statement that Melania Trump’s speech ‘in some instances included fragments’ from the earlier speech that reflected Melania’s own thoughts. It seems clear that copying did occur. But does it constitute plagiarism? Does it constitute copyright infringement? In considering these questions, it might help to search online for more information and commentary about this incident.

    USEFUL REFERENCES

    There are various websites that provide information and guidance about plagiarism and how to avoid it! Many of these websites have been developed by Universities seeking to educate their students about this increasingly important issue. One particularly helpful resource is ‘What Constitutes Plagiarism’ within the Harvard Guide to Using Sources: http://usingsources.fas.harvard.edu/what-constitutes-plagiarism

     

    Other resources have been developed by commercial companies that specialise in developing tools and strategies to help students and educators understand and detect plagiarism within an educational context. For example, see: http://www.plagiarism.org/

    Download the PDF version of Case File #18 – The Purloined Letters.

  • 19. The Fateful Eight Seconds

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    As Watson enters the room we see Sherlock reading a newspaper. On one page, the headline reads: ‘Eight Seconds of Sporting Genius!’ The choice of headline was intentional. It refers to a copyright case involving the use of eight-second clips of a sports broadcast.

    In this Case File #19 we consider how the concept of substantial copying applies to broadcasts and films, and why the exception to copyright for reporting current events is important for both media organisations and ‘citizen journalists’.

     

    SUBSTANTIAL COPYING

    Copyright protection is not confined to preventing the copying or use of works in their entirety. Simply copying part of the work can also infringe. On the other hand, copying an insubstantial part of a copyright work without permission is allowed. This is because the law recognises that no real injury is done to the copyright owner if only an insignificant part of the work is copied.

    In earlier Case Files we consider the concept of substantial copying in relation to artistic works (see Case File #7 The Matching Wallpaper) and literary works (see Case File #9 The Improbable Threat). In this Case File #19 we consider what substantial copying means in relation to broadcasts, films, and other types of audiovisual work.

    Whatever type of work you are dealing with, substantial copying is considered by the courts to be a matter of quality, not quantity. So, it is not just about how much you copy from someone else’s work, it is about the importance or value of the copied parts in relation to that work. This is because a small part of the original work may be highly significant to the piece as a whole. This focus on the quality rather than the quantity of what has been copied can make it difficult to define precisely what amounts to a substantial copying.

    This distinction between quantitative copying (that is: how much have you copied?) and qualitative copying (that is: how important or significant is the part that you have copied?) is well illustrated by the decision of England and Wales Cricket Board v. Tixdaq (2016).

     

    THE CASE: England and Wales Cricket Board v. Tixdaq (2016)

    The England and Wales Cricket Board (the ECB) own copyright in the television broadcasts and films of most cricket matches played by the England men’s and women’s cricket teams. The defendants, Tixdaq, operate a website (www.fanatix.com) and an App that provides users with eight-second clips of broadcasts of cricket matches. Many of these clips were uploaded by the defendants themselves, but users also uploaded clips to the App service. These clips could also be seen on the defendants’ Facebook page and Twitter feed.

    The ECB sued for copyright infringement. They argued that the use of an eight-second clip from over two hours of footage amounted to substantial copying. The defendants disagreed, arguing that a single eight-second clip could not be considered to be substantial. Mr Justice Arnold, the presiding judge, held for the ECB on this point. He commented as follows:

    Quantitatively, 8 seconds is not a large proportion of a broadcast or film lasting two hours or more. Qualitatively, however, it is clear that most of the clips uploaded constituted highlights of the matches: wickets taken, appeals refused, centuries scored and the like. Thus most of clips showed something of interest, and hence value … Accordingly, in my judgment, each such clip constituted a substantial part of the relevant copyright work(s).

    The fact that the clips were very short did not matter. What mattered was that they showed something of interest; they were qualitatively significant.

     

    REPORTING CURRENT EVENTS

    UK copyright law provides a number of exceptions to copyright for specific circumstances when work can be used without needing permission from the copyright owner. There are various exceptions set out in the Copyright, Designs and Patents Act 1988 concerning non-commercial research and private study, quotation, news reporting, education, and other uses.

    In the Tixdaq case, the defendants argued that, even if the clips used amounted to a substantial part of the ECB’s work, they still had a defence in the guise of the exception for reporting current events. But, were the clips posted by the defendants and by users of fanatix.com really uploaded for the purpose of reporting the news? Traditionally, this exception has been relied upon by professional journalists and the newspapers, broadcasters and media organisations for which they work. The question for the court was whether the exception also extended to use on social media by fans creating and sharing their own reports; that is: ‘citizen journalists’.

    In considering this question Mr Justice Arnold observed that the purpose of the exception for reporting current events was ‘to provide an exception to copyright in the public interest, namely freedom of expression’. It is an exception, he continued, that must take into account ‘recent developments in technology and the media’. With that in mind, the judge commented that ‘[i]f a member of the public captures images and/or sound of a newsworthy event using their mobile phone and uploads it to a social media site like Twitter, then that may well qualify as reporting current events even if it is accompanied by relatively little in the way of commentary’.

    In this particular case, however, Mr Justice Arnold decided the exception did not apply. The main purpose of fanatix.com, he concluded, was simply to share clips of footage of sporting events, rather than to provide information or commentary about those events. Ultimately, the judge decided, the purpose of fanatix.com was purely commercial and not informatory.

     FOR DISCUSSION: NO PHOTOGRAPHY PLEASE

    Newspapers often use photographs to accompany and illustrate their reports and stories. Indeed, in our film, the article in the newspaper that Sherlock is reading is accompanied by a photograph of a cricketer. However, the exception for reporting current events applies to all types of copyright work except photographs. That is, you cannot use photographs protected under copyright for reporting current events without obtaining the permission of the respective copyright owner.

    So, if you were a ‘citizen journalist’ with your own blog on newsworthy events the exception for reporting the news allows you to upload short clips of other people’s broadcasts or films to your blog (so long as your use is considered fair) but not to make use of other people’s photographs. Why do you think photographs are treated differently under this exception from every other type of protected work?

    USEFUL REFERENCES

    Copyright Designs and Patents Act 1988: http://www.legislation.gov.uk/ukpga/1988/48/contents

    England and Wales Cricket Board Ltd [the ECB] & Anor v. Tixdaq Ltd & Anor [2016] EWHC 575 (Ch), available here: www.bailii.org/ew/cases/EWHC/Ch/2016/575.html

    For further commentary on the exception for reporting current events, see here: http://copyrightuser.org/topics/news-reporting/

    Download the PDF version of Case File #19 – The Fateful Eight Seconds.

  • 20. The Lawful Reader

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    As Watson enters the room we see Sherlock reading a newspaper. On one page, the headline reads: ‘News Just In! Reading the internet is the same as reading a book.’ The choice of headline was intentional. It refers to a copyright case in which the courts were asked to consider whether simply reading material online might infringe copyright.

    In this Case File #20 we consider the legality of browsing the internet and whether, from a copyright perspective, reading online is fundamentally different from reading a physical book, newspaper or magazine.

     

    WHEN READING INVOLVES COPYING

    Using the internet involves copying. Simply browsing a website involves the transmission of copies through internet routers and proxy servers to your computer or mobile device. When you view a webpage online, temporary copies of that page are made on your screen and also in the internet ‘cache’ on your hard drive. The use of an internet cache is a universal feature of browsing technology: it allows you to search and browse the internet efficiently and effectively. Indeed, without the use of a cache the internet would not function properly.

    For this reason, reading online is technologically different from reading a book or a magazine. That is, whereas reading a physical book does not involve making copies of the text in that book, reading the same text online does involve copying. So, when you read or browse online are you infringing copyright? This was the question which the UK Supreme Court had to address in Public Relations Consultants Association v. The Newspaper Licensing Agency (2013).

     

    THE CASE: Public Relations Consultants Association v. The Newspaper Licensing Agency (2013) UKSC 18

    At the heart of this case was a very simple question: does reading material online involve making infringing copies? European and UK copyright law contains an exception that permits making temporary copies of protected works as long as the temporary copy: i) is transient or incidental; ii) is an integral part of a technological process intended to enable the lawful use of a work; and iii) has no independent economic significance.

    The Newspaper Licensing Agency (the NLA) argued that this exception did not apply to browsing material online. One of their main arguments concerned copies that were made in the cache. Normally, material copied to the cache will remain there for two to three weeks before it is automatically deleted by the computer as a result of the continued use of the browser. However, the NLA pointed out that it is possible to adjust the settings on a computer to enlarge the cache and so extend the time it retains the copies while the browser is in use. Moreover, if a user simply closed down their computer or device, then copies in the cache might remain there indefinitely until the browser was used again. The NLA argued that in neither of these situations could cached material be regarded as temporary copying.

    In the Supreme Court, Lord Sumption rejected these and other arguments put forward by the NLA. The purpose of the exception, he commented, was to enable the internet to function correctly and efficiently. That, in turn, required making temporary copies within the cache of an end user’s computer. Without caching material, the internet would not function properly. With that in mind, he continued, it would make no sense if the exception did not permit the ordinary technical processes associated with browsing (that is, making copies on screen and copies in the cache). In short: browsing is lawful.

    It is important, however, to distinguish between simply reading material online and making a more permanent copy or record of that material. That is, while browsing is lawful, downloading or printing out material made available online will typically require the permission of the copyright owner (unless another copyright exception applies, for example, fair dealing for private study). The exception for temporary copies allows you to read online, but nothing more.

     FOR DISCUSSION: READING IS READING IS READING

    In delivering his opinion, Lord Sumption was keen to make the point that reading copyright material on the internet should be treated in the same way as reading a physical book, newspaper or magazine. That is, while technologically reading online might involve making temporary copies on the screen and in the cache, the law should not make any distinction between reading online and reading offline. He continued:

    If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet …

    However, what if the content you are reading online has been posted there unlawfully? That is, what if the copyright owner has not granted permission for their material to be made available online in the first place? Should the law draw a distinction between browsing lawful and unlawful content? If so, how would you know whether the material has been posted lawfully or unlawfully?

    USEFUL REFERENCES

    Copyright Designs and Patents Act 1988: http://www.legislation.gov.uk/ukpga/1988/48/contents

    Public Relations Consultants Association Ltd v. The Newspaper Licensing Agency Ltd & Others [2013] UKSC 18, available here: www.bailii.org/uk/cases/UKSC/2013/18.html

    Download the PDF version of Case File #20 – The Lawful Reader.

  • 21. The Six Detectives

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    Mary’s problems began when she ‘started fleshing out the main character: the hero-detective’. Before settling on one and starting seeing the others everywhere, she considered six potential protagonists for her story. As some may notice, each of the six detectives (and Mary herself) are inspired by and based on famous existing characters from various books, films, TV shows, plays, and graphic novels, as well as real people.

    This Case File #21 explores the conditions for the protection and lawful reuse of fictional characters.

     

    COPYRIGHT AND FICTIONAL CHARACTERS

    Copyright law protects the unauthorised reproduction of literary and artistic works, but how copyright protects specific elements of these works, such as the characters in a story, is less clear. Invented names are not protected by copyright law because the name itself is not an original literary work. We know, however, that fictional characters are much more than just an invented name: they are often well-defined personalities with distinctive looks, habits and speech patterns. But should they enjoy protection outside of the story?

    Within the UK, there is little legal guidance on this issue. In Kelly v Cinema Houses (1933), the author Joan Kelly sued a film production company for copying her book adaptation of The Outsider, a play originally written by another author Dorothy Brandon. Mrs Kelly had Ms Brandon’s permission to turn the play into a book. The film production company also had permission from Ms Brandon to adapt her play for the screen, but they had not acquired any rights from Mrs Kelly. When the film was released, Mrs Kelly argued that, in adapting the Ms Brandon’s play for the screen, the filmmakers had also copied aspects of her novel both in terms of plot and character.

    Ultimately, the court decided in favour of the film projection company: the film, essentially, was an adaptation of the play alone; if the filmmakers had borrowed from Mrs Kelly’s novel, they had only borrowed trivial or commonplace elements. There was no copyright infringement. But, in handing down his decision, Mr Justice Maugham commented as follows:

    If, for instance, we found a modern playwright creating a character as distinctive and remarkable … as Sherlock Holmes, would it be an infringement if another writer, one of the servile flock of imitators, were to borrow the idea and to make use of an obvious copy of the original? I should hesitate a long time before I came to such a conclusion.

    Some legal scholars have interpreted these comments to mean that copyright protection probably does not exist for literary characters outside of the work in which they appear. However, the judge’s comments are not conclusive on the issue and if the case were decided today the courts may well take a different, more contemporary approach. At best, all that can be said is that there is no decisive case law in the United Kingdom indicating whether characters should be protected by copyright.

    By contrast, other jurisdictions around the world have established clearer rules about protecting literary characters through extensive litigation. For example, a German court recently held that the fictional character Pippi Longstocking, created by the Swedish author Astrid Lindgren, had a ‘unique personality’ and was protected by copyright as a literary work. Similarly, in the United States characters are generally considered independently copyrightable so long as the character is ‘sufficiently delineated’. Indeed, Sherlock Holmes, as a character, has been the subject of litigation in the United States (you can read a press release about this recent litigation from the Conan Doyle Estate here as well as further reports about the case on this Free Sherlock! blog).

     

    OTHER FORMS OF LEGAL PROTECTION

    Despite the fact that UK copyright law may not protect characters separately from the work in which they appear, those characters may enjoy protection through other forms of intellectual property law, such as trade mark law or passing off.

    This is particularly true when the character in question is represented by drawings or on film. For example, many of the character illustrations from Beatrix Potter’s children’s books are registered trade marks even though her works are no longer in copyright (Beatrix Potter, 1866 – 1943). So, even though her work is in the public domain (from a copyright perspective), the use of the characters’ names and likenesses, such as the much beloved Peter Rabbit, is still protected by other forms of intellectual property law.

    Using other forms of intellectual protection is not always successful, though. Passing off is a form of intellectual property that protects the goodwill someone has established in their product or services, like a form of unregistered trade mark. Goodwill can be established in many different things: a brand name, a form of packaging, or an advertising style. In Doyle v. London Mystery Magazine (1949) the Conan Doyle Estate attempted to prevent a newly established magazine from using the name ‘Sherlock Holmes’ and the address ‘221B Baker Street’ as part of its promotional activities.

    When Conan Doyle originally wrote the Sherlock Holmes stories, 221B Baker Street did not exist: it was a fictional address. However, in 1949 the Abbey National Building Society owned the block of buildings from 219-223 Baker Street. The magazine reached an agreement with the Abbey National to use the famous address for all of the magazine’s correspondence. In turn, The London Mystery Magazine was advertised to readers as coming from ‘221B Baker Street … the address of the late Sherlock Holmes, Esq’. Bringing an action based on passing off, the Conan Doyle Estate argued that readers might be misled into thinking the magazine had something to do with the Sherlock Holmes stories, or might even feature Sherlock Holmes. In court, the judge decided in favour the magazine: while the Conan Doyle Estate might enjoy goodwill in the actual stories relating to Sherlock Holmes, the magazine publishers were doing nothing wrong. Readers would not be confused. The magazine was free to continue using the character’s name and address.

    The London Mystery Magazine went on to become the longest running British mystery magazine, lasting from 1949 to 1982.

     FOR DISCUSSION: THE AFTERLIFE OF CHARACTERS

    Do you think that a character in a literary work should be protected by copyright?  Do any of the approaches adopted by other jurisdictions make sense?

    One area where character protection is contentious concerns fan fiction, that is fictional stories written by fans about characters from a favourite TV show or film and then shared with other fans online. These stories are rarely written with the permission or authorisation of the original author or copyright owner. At the same time, very few of these stories are ever commercially or professionally published: rather, they represent a form of creative, non-commercial reuse of literary characters by fans who love or enjoy those characters. In some jurisdictions, fan fiction might be protected as a form of parody under fair dealing or fair use, but this will not always be the case. Indeed, some copyright owners are attempting to introduce licensing systems specifically for this type of character reuse.

    Should fan fiction authors be required to obtain a licence to reuse characters from a literary work that is still in copyright? Should fans be able to write and share creative stories about their favourite characters without having to seek permission or pay a fee? Would it make a difference if they are sharing those stories for free, or trying to make some money out of them?

    USEFUL REFERENCES:

    A press release from the Conan Doyle Estate about the case Klinger v Conan Doyle Estate can be found here: http://www.conandoyleestate.com/index.php/press-release-klinger-v-conan-doyle-estate/

    Further reports about the case Klinger v Conan Doyle Estate can be found on the Free Sherlock! blog: https://free-sherlock.com/

    For further information about the concept of the public domain, see here: http://copyrightuser.org/topics/public-domain/

    For further information about Fan Fiction, see here: https://en.wikipedia.org/wiki/Fan_fiction

    Download the PDF version of Case File #21 – The Six Detectives.


The Adventure of the Six Detectives was made possible by generous contributions from the following organisations:

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CREDITS

Film

Written, Produced and Directed by Ronan Deazley and Bartolomeo Meletti
Art Direction / Design / Animation: Marco Bagni
Illustrations: Davide Bonazzi
Music / SFX: Sarc:o
Voice-over Artists (londonvoiceover.co.uk): Mary Westmacott – Janie Booth; Sherlock Holmes – Cliff Chapman; John Watson – Anton Saunders

Case Files

Authors: Ronan Deazley, Megan Rae Blakely and Andrea Wallace
Editor: Ronan Deazley
Design: Marco Bagni
Production: Bartolomeo Meletti

 

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