Thursday 14 November 2019

James Parish - Fictional characters and the law of copyright

After a short plug from the Cambridge University Libraries Copyright Group, James Parish, a PhD researcher in the Cambridge law department, gave us a fascinating talk regarding whether copyright could apply to fictional characters.

James Parish - PhD Researcher

James Parish is a Solicitor of England & Wales; Teaching Fellow of Intellectual Property Law, King's College London; and PhD Candidate, St Edmunds College (University of Cambridge). His thesis probes the jurisprudence of Copyright Exceptions and Limitations, but as his early career was spent in the film industry. But when talking to a group of librarians, he decided to add a literary element!

James explained to us that copyright law only protects the author’s expression of a work (ie creative choice that the author makes when selecting and arranging the words on a page). Copyright does not protect the underlying ideas of the work. The distinction between expression and ideas is a little tricky, yet the courts have generally accepted that the plot of a book is more than a mere idea and the plot can therefore be protected by copyright as part of the author’s expression. But what about another key element of literary works? Could copyright infringement be claimed on characters themselves separate to the plot of a book?

James took us through the arguments from several interesting legal disputes in the UK, Europe and the USA. (For those that would like to read more I have hyperlinked to some commentary):

· Da Vinci Code case (UK) – ideas from history can be freely used for the basis of new characters.
· Pippi Longstocking case (Germany) – a supermarket selling a Pippi costume.
· Wind Done Gone case (USA) - a parody of Gone with the Wind written from a slave’s perspective and thus using the plot and characters of the original work.
· Sherlock Holmes case (USA) - dispute arising over licensing fees as Conan Doyle’s earlier books were out of US copyright but the later ones weren’t.
· Dalek book case (UK) - regarding whether copyright to the Daleks belonged to Terry Nation and the original TV show or the more recently published books.

In discussing these cases James highlighted the difference between UK copyright exceptions (known as fair dealing) and the more wider “fair use” system in the US. He quoted from various judgments and pointed out that the more fully developed a character becomes the more likely copyright could be attached.

James finished off the talk highlighting that a lot of new popular fan fiction could be infringing and this could become a problem for the new authors – particularly as their hobbies become more commercial. During the question and answer session he also considered whether copyright restrictions could stifle creativity in, for example, a creative writing class and whether occasionally publishers panic and make unnecessary changes in order to avoid any threat of copyright infringement claims.

Post contributed by Kate Faulkner, Legal Research Librarian, Squire Law Library