What We Talk About When We Talk About Fictional Characters (and Copyright)

Critical Analysis of Law, Vol. 7, No. 1, 2020

31 Pages Posted: 25 Jun 2020

See all articles by Steven Wilf

Steven Wilf

University of Connecticut School of Law

Date Written: April 19, 2020

Abstract

What do pictures want? Echoing the famous question posed by art historian W.J.T. Mitchell, this article interrogates that query within the skein of copyright law. The creation of a fictional character means seeing a possibly singular, inert image as having a past and a future, a panoply of emotional responses and, significantly, desires. Fictional characters are not copyrightable per se. Rather, protection stems from expression of those characters in copyrightable works. To determine whether fictional characters have reached the threshold of complexity worthy of copyright, courts inquire how well a character has been delineated.

For nearly a century, copyright has relied upon traditional round character literary analysis which looks at a character’s distinguishable features from the audience’s point of view. Recently, flat protagonist criticism examines whether the character serves as a proper vehicle for the author’s story. This article takes another approach—asking what the image is trying to tell us about its own absences, needs, and emotional lacunae. Beyond establishing protection, we need to query what protagonists are unworthy of copyright. I argue that stereotypes should be held to stricter scrutiny as creating insufficiently desiring characters.

Suggested Citation

Wilf, Steven, What We Talk About When We Talk About Fictional Characters (and Copyright) (April 19, 2020). Critical Analysis of Law, Vol. 7, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3617214

Steven Wilf (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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