When is a Fictional Character Copyrightable?

Until recently, there was no easy answer to this question, except to say, “it depends on how well defined the particular character is.” On June 17, 2009, however, a federal district court in New York considering J.D. Salinger’s motion for a temporary restraining order blocking the publication and distribution of a “sequel” to his 1951 classic Catcher in the Rye ruled from the bench during oral argument that the character of Holden Caulfield is copyrightable on its own. (The Court’s opinion is not yet available through PACER, although many articles have reported the nature of the Court’s opinion in granting the TRO; the formal opinion apparently will be filed within the next 10 days.) See, e.g., Ashby Jones, “Judge Halts Publication of ‘Catcher’ Sequel, For Now,” Wall Street Journal Law Blog, June 17, 2009.

J.D. Salinger’s Complaint

On June 1, 2009, J.D. Salinger filed suit against “John Doe, writing under the name John David California,” two publishers (Windupbird Publishing Ltd. and Nicotext A.B.) and a distributor (ABP, Inc. d/b/a SCB Distributors, Inc.) alleging two counts of copyright infringement and a count of unfair competition. Salinger v. Doe, et al., No. 09-CV-5095 (S.D.N.Y.). Salinger’s claims center around the anticipated publication in the U.S. of a book called, 60 Years Later: Coming Through the Rye.

According to the Complaint, the author of the book calls it a “Sequel,” telling the story of Holden Caulfield at the age of 76, leaving a nursing home to wander around New York City. Salinger alleges numerous similarities to his original Catcher in the Rye — in terms of style and narration of the book, as well as the use and further development of his character, Holden Caulfield, about whom Salinger apparently did not write again after the original book was published. Salinger Complaint ¶ 37 (“J.D. Salinger has not published or authorized the publication of any new narrative for Holden Caulfield since the first publication of The Catcher in the Rye in 1951, and has expressly and publicly stated that he will not do so.”).

Salinger has apparently been approached several times over the years to seek his permission for the right to create other stories based on the Holden Caulfield character, and has declined the requests. A. G. Sulzberger, “Holden Caulfield, a Ripe 76, Heads to Court Again,” New York Times, June 16, 2009. He similarly refuses to grant the right to create any film version of the story. Salinger Complaint ¶ 39 (referencing requests by Harvey Weinstein and Steven Spielberg for the film rights and quoting his 1980 public statement: “There’s no more to Holden Caulfield. Read the book again. It’s all there. Holden Caulfield is only a frozen moment in time.”)

The two copyright claims in the Complaint allege that any further story about Holden Caulfield – especially when told in an environment in which the sequel’s author conceded that he’s telling the story of the same Holden Caulfield, simply older – is copyright infringement of the statutorily-protected character. Id. ¶¶ 66-75. In a similar vein, the Complaint alleges that telling a new story based on the old book is an unauthorized derivative work (a separate violation of the Copyright Act), infringing Salinger’s exclusive rights to create derivative works from his original text. Id. ¶¶ 76-83.

The particularly unique aspect about this case is that during the hearing seeking the temporary restraining order, the Court was apparently receptive to recognizing copyright rights in a character who is depicted in a single novel. See Mark Hamblett, “Federal Judge Mulls Copyright Status for Salinger’s Holden Caulfield,” New York Law Journal, June 18, 2009 (available at http://www.law.com). According to the article, the Judge said the following during the TRO hearing: “It is hard to separate Holden Caulfield from the book. . . . It would seem that Holden Caulfield is copyrightable. . . . Let’s imagine taking Holden Caulfield out of the book – there’s nothing left.” Hamblett, at 2.

Prior Rulings (Nationwide)

Fictional characters who are depicted consistently in graphic form (as well as through the narrative of the story) receive more protection from copying than those who are merely described in text. By way of example, consider a 1970s case in which defendants had created adult comic books featuring the Disney characters in ways that were clearly unauthorized. Disney sued, claiming copyright infringement of the characters. The Court conceded that while literary characters were not copyrightable (they “were merely vehicles for the story” to be told), comic book characters were different and could achieve copyright protection. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (considering the potential infringement of seventeen Disney characters, including Mickey Mouse); compare with Warner Bros. Pictures, Inc. v CBS, Inc., 216 F.2d 945 (9th Cir. 1954) (concluding that Sam Spade and other literary characters were not protectable by copyright law because they were “mere vehicles” to tell the story). Specifically, the court explained:

“[I]t is difficult to delineate distinctively a literary character. . . . When the author can add a visual image, however, the difficulty is reduced. . . . Put another way, while many literary characters may embody little more than an unprotected idea . . . , a comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression.”

Id. at 755 (9th Cir. 1978) (citations omitted).

Moreover, courts considering these issues have also focused on repetitive appearances of the characters at issue – for instance, in stories that are part of a series in which the exact same character, described the same way, with the same name appears over and over with new adventures. This was true whether the story was captured in:

* a Sunday paper comic strip (Nat’l Comics Pub., Inc. v. Fawcett Pub., Inc., 191 F.2d 594 (2d Cir. 1951) – Superman versus Captain Marvel)
* a comic book series (Detective Comics, Inc. v. Bruns Pubs., Inc., 111 F.2d 432 (2d Cir. 1940) ­– Superman versus Wonderman)
* a series of movies highlighting the exploits of a master spy (Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., Inc., 900 F. Supp. 1287 (C.D. Cal. 1995) – James Bond); or
* a series of TV episodes devoted to the antics of a reluctant superhero (Warner Bros. Inc. v. ABC, Inc., 720 F.2d 231 (2d Cir. 1983) – The Greatest American Hero, Ralph Hinkley/Hanley).

Generic Character Components

Under U.S. Copyright Law, generic story components – such as a damsel in distress, a villain, or a dashing hero – are not capable of copyright protection. They are merely ideas, and not copyrightable expression; anyone can create new stories about them without fear of infringing a prior work. Also referred to as “scenes à faire,” this doctrine “in general, excludes from copyright protection material that is ‘standard,’ ‘stock,’ or ‘common’ to a particular topic, or that ‘necessarily follow[s] from a common theme or setting.’” Madrid v. Chronicle Books, 209 F. Supp. 2d 1227, 1242 (D. Wyo. 2002) (quoting Autoskill v. Nat’l Ed. Support Sys., Inc., 994 F.2d 1476, 1494 (10th Cir. 1993)).

The statute also makes it clear: copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). This was true even before the current version of the Copyright Act was passed. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936) (“Generalized themes and ideas lie in the public domain and are not copyrightable.”).

As a result, it is arguable whether many of Holden Caulfield’s characteristics that Salinger claims in his Complaint are protectable. Given the Court’s ruling from the bench on June 17, it will be interesting to see how the Court characterizes the following features of the Holden Caulfield character that Salinger claims are unique:

* Being “a disaffected 16-year old boy” who is “kicked out of prep school” (Salinger Complaint ¶ 16)
* Lacking a particular goal (Id. ¶ 18);
* Narrating the story in an “extremely casual” tone, “filled with slang” (Id. ¶ 19);
* Addressing the reader directly, “leaning toward a stream of consciousness” (Id. ¶ 20);
* “Prone to digressions” (Id. ¶ 22);
* Being an “angst-filled cynic” (Id. ¶ 24);
* Having a “slang-peppered vocabulary” (Id.);
* Being a liar (Id.);
* Being “quick to criticize” (Id. ¶ 25);
* “Feel[ing] disconnected from most of those around him” (Id. ¶ 26); and
* “Fixat[ing] on many ideas” and “repeat[ing] himself” in the narration of the story (Id. ¶ 27).

See also id. ¶¶ 57, 59 and 61 (comparing characteristics of the protagonist in the Sequel with Holden Caulfield). Perhaps the Court will opine that collectively, these features form a single, recognizable and unique character capable of separate protection under the Copyright Act.

If the Court’s opinion sets forth a strong basis for protecting a literary character that appears in a single work of fiction (instead of merely holding that this character qualifies for protection), it will undoubtedly be an interesting read.

One thought on “When is a Fictional Character Copyrightable?

  1. Thank you for some great insight! It does appear that courts have struggled in finding strong copyright protection for a fictional character who is not otherwise graphically illustrated. I am guessing that no matter how the court rules, someone will ask the Court of Appeals to weigh in on this and a number of other issues this case raises.

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