NABOKV-L post 0003502, Thu, 19 Nov 1998 15:02:20 -0800

Re: Lo's Diary: What's the Law? (fwd)
NABOKV-L thanks Paul Tudor for this item.
From: Paul Tudor <>

I refer you to "The Copyright Permission and Libel Handbook", by Lloyd
Jassin and Steven Schechter, published by Wiley earlier this year:

"Well-known characters, especially visually depicted ones, that are not
merely stereotypes may be protected under copyright law, as well as under
trademark and unfair competition laws. Courts, howevetr, are split on
whether literary characters can be protected by copyright outside the work
they appear.

"Nonetheless, even if a character is in the public domain, trademark or
competition law may protect the goodwill of a character if the character has
gained commercial magnetism through public recognition. For example, Popeye,
who made his first appearance in 1929 in a weekly cartoon strip called
'Thimble Theatre', will slip into the public domain for copyright purposes
on Jan 1, 2004. However this does not preclude King Features, its owner,
from claiming trademark rights in the character, or protecting later strips
or nontrivial changes in the character..." pp 59-60

"Understanding Copyright Law" 2nd ed, by Marshall Leaffer, cites the leading
American cases in this area. Leaffer summarises Judge Hand's decision in
Nichols v Universal Pictures Corporation - 45 F2d 119 (2d Cir. 1930):

"Judge Hand suggests that there are two aspects of character protection: the
infringed character must be sufficiently delineated and the infringing
character must closely imitate the infringed character. Under this test, the
line must be drawn between mere ideas sketching the general nature of the
character and more fully developed characterization. In this sense, the
protectibility of the literary dimension of a character is no different from
the protectibility of other elements in literary works, such as the details
of plot and setting...

"In Warner Bros Pictures Inc v Columbia Broadcasting System, 216 F2d 945
(9th Cir. 1954), [otherwise known as "The Sam Spade Case"] the court
sugegsted another test, stating that copyright might cover a fictional
character if the character constitutes the story being told, rather than
merely a chessman or vehicle for telling of the story. This somewhat more
restrictive view of copyright for literary characters arose out of a
contractual dispute covering the rights to Dashiel Hammet's fictional
detective Sam Spade. In this case, the Ninth Circuit Court of Appeals held
that the contract assigning the motion picture, radio and television rights
to the book 'The Maltese Falcon' did not cover a copyright in the character
of Sam Spade because characters per se are not copyrightable. This goes far
beyond Judge Hand's statement and would deny copyright protection, even
against direct copying of a unique and developed character, unless the
character really constitutes the story being told.

"This Sam Spade standard would rarely be met, virtually excluding protection
of literary characters. It has not been widely approved by either the bench
or commentators."

In Laddie, "The Modern Law of Copyright and Designs", 1995, the approach of
British, or Commonwealth jurisdictions is explained. That is, copyright on
literary characters may well come down to how many details that are copied,
or how densely this copying occurs, rather than on simple issues such as the
name of the character: "This is not because there is copyright in the
character as such, but because the collection of attributes, features,
well-known quotations and so forth which go to make up the imaginary world
in which the character moves may amount to a substantial part of the
author's original work." According to Laddie, 'The Sam Spade Case'
highlights the major distinction in the US between visal images and "word
portraits", which are supposedly less easily protected.

Laddie also quotes from Judge Hand's famous 1930 decision:

"If Twelth Night were copyrighted, it is quite possible that a second comer
might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it
would not be enough that for one of his characters he cast a riotous kinight
who kept wassail to the discomfort of the household, or a vain and foppish
stweard who became amorous of his mistress... It follows that the less
developed characters, the less they can be copyrightred; that is the penalty
an author must bear for marking them too indistinctly."

> ----------
> From: Donald Barton Johnson[]
> Reply To: Vladimir Nabokov Forum
> Sent: Thursday, 19 November 1998 11:23
> To:
> Subject: Lo's Diary: What's the Law? (fwd)
> From: Jay Livingston (
> Most of the discussion here seems to have been over what's right
> and
> wrong. But I'm curious about the legal issues.
> The potential American publisher of "Lo's Diary" backed down, so
> we
> never got to see the case argued in court. But does anyone know what the
> law is
> on these matters--in the U..S. at least (presumably it's looser in Italy
> and
> perhaps other European countries)? Do authors own their characters--does
> the
> Nabokov estate own Lolita--in the same way that Disney owns Mickey Mouse?
> If Shakespeare's heirs still had copyright protection, would
> "Rosencrantz and Guildenstern Are Dead" be gathering dust in Stoppard's
> trunk?
> Or could I, without fear of a successful lawsuit, publish a book
> with
> the title "P is for Plagiarism" featuring a detective named Kinsey
> Millhone?
> -----------------
> EDITOR's NOTE. Oddly, there is a book that traces Kinsey M.'s life thru
> her alphabetic adventures. Whether Sue Grafton or her publisher
> "authorized" it, I don't know. I wonder if the author of the
> "meta-Millhone" book meditates on that first name? Why "Kinsey"?x