Works of Fiction: The Misconception of Literary Characters as Copyright Works

Journal of the Copyright Society of the USA (Forthcoming)

38 Pages Posted: 31 Oct 2018

See all articles by Jani McCutcheon

Jani McCutcheon

The University of Western Australia Law School

Date Written: October 9, 2018

Abstract

This article critiques US jurisprudence, commentary and industry practice suggesting that fictional literary characters constitute separate copyright works distinct from the literary works in which they are situated. The scholarship on this jurisprudence tends to lament the ambiguity of the courts’ character delineation standards, and the inconsistency of court decisions applying them, but rarely, if ever, questions the legitimacy and coherence of the character-as-work doctrine. The paper will argue that the doctrine is fundamentally misconceived. It evolved from the fragile foundation of a casual obiter comment in an infringement analysis and morphed confusedly into an entrenched, though misunderstood, principle. The article will explain the unstable foundation of the character-as-work doctrine with reference to the concept of a ‘work’ in copyright law and its relationship to the fixation doctrine. The article argues that the nature of literary characters precludes them from being clearly and consistently identified and thus perceptible in a copy for the purposes of fixation. It explains how the character-as-work doctrine ignores the nature of literary characters; confuses subsistence standards; fosters illusory rights, rights hyperextension and lazy infringement analyses; and encourages character ‘evergreening’ beyond the copyright term.

Keywords: copyright work; literary characters; copyright; character

Suggested Citation

McCutcheon, Jani, Works of Fiction: The Misconception of Literary Characters as Copyright Works (October 9, 2018). Journal of the Copyright Society of the USA (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3263155 or http://dx.doi.org/10.2139/ssrn.3263155

Jani McCutcheon (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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