Brief of 20 Professors of Law and Public Knowledge as Amici Curiae in Support of Affirmance

Abstract

In Carroll Shelby Licensing v. Halicki, the U.S. Court of Appeals considers whether a car in a film is a "character" for purposes of copyright law. Character copyright protection has proven to be an especially difficult area of the law, and courts and commentators have struggled with the proper boundaries of such protection and whether characters are independently protectable works at all.

This brief presents a novel legal argument for resolving the scope of character copyright, at least in the context of inanimate objects in creative works such as cars. While the case law and commentary has to date focused on whether a character is copyrightable, little attention as been paid to what constitutes a "character" in the first place. The brief draws a distinction, based in literary theory, between characters and props: the former have volitional agency and defined personality traits, while the latter do not. That distinction can and should inform the doctrinal treatment of entities in films, books, and other creative works. The special rules for independent copy right abliaty of characters, the brief argues, should be limited to characters, while props should (and will) receive copyright protection under the standard rules of copyright protection for literary, pictorial, graphic, or sculptural works. This approach would not only simplify the doctrinal difficulties of character copyright protection, but also best serve the underlying purposes of copyright law.

Keywords: Copyright law, Creativity, Literary characters

JEL Classification: K19, O34, Z11