Legal Issues Journal 5(1): Legal Issues Journal, #5.1

LEGAL ISSUES JOURNAL

Volume 5, Issue 1

January 2017

LEGAL ISSUES JOURNAL

Volume 5, Issue 1

January 2017

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EXECUTIVE PUBLISHER

Fatos Selita

EDITOR-IN-CHIEF

Markus McDowell

REVIEWERS AND EDITORS

David Felipe Alvarez, Marco Bocchi, Matthew Channon, Janet Furness, Richard Glover, M. Sanjeeb Hossain, Riyao Liu, Darell Pang, Nataly Papadopoulou, Daniel Schoeni, Nazia Shaikh, Andre Sinanan, Meixian Song.

COPY EDITORS

Konstantinos Georgiadis, Leanne Gray

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Legal Issues is an international journal managed and published by the UK Law and Society Association (UKLSA). The Journal publishes fine research in all fields of law on the basis of its contribution to the society, originality, interdisciplinary interest, and quality. Every effort has been made to ensure accuracy of the submissions. However, the UKLSA is not responsible for any errors. The views expressed in this journal are those of the authors and do not necessarily reflect those of the Editorial Board or of the UKLSA. We are therefore unable to accept responsibility for the content of the submissions.

To advertise with Legal Issues Journal, email the Editor-In-Chief ([email protected]) or visit www.legalissuesjournal.com.

© 2017 UK Law Students’ Association. All rights reserved.

The United Kingdom Law and Society Association

www.uklsa.co.uk

PATRONS

Lord Neuberger of Abbotsbury

President of the Supreme Court

Lord Phillips of Worth Matravers

Former President of the Supreme Court

HONORARY BOARD

His Hon Judge Dight, Chancery Specialist Circuit Judge

Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, 39 Essex Street

Andrew Caldecott QC, Barrister, Head of One Brick Court Chambers

Stephen Rubin QC, Barrister, Fountain Court Chambers

Tim Ludbrook, Barrister, 13 Old Square Chambers

Fergus Randolph QC, Barrister at Brick Court Chambers

BOARD OF GOVERNORS

Iman Fadaei, Founder of CrowdSkills Ltd., Aha Design; and The Positive Ideas Company Ltd.

Alex Matheson, Barrister, Manager at Prolegal Solicitors

Dr. Markus McDowell, Editor & Executive Publisher, Sulis International; legal research consultant

Fatos Selita, Founder of The UKLSA; Barrister; Attorney and Counselor at Law, New York State, USA; Consultant at Emerging Law Ltd.; AIR Courses Director at Goldsmiths, University of London; Lecturer and Director of the Department of Intellectual Property Transfers at Tomsk State University; Visiting Lecturer at Higher School of Economics

Table of Contents

Copyright Protection of Fictional Characters in Films:  U.K. and U.S. Perspectives

International Competition Law: The Antitrust Damages Directive Feb 2016

The Resounding Success of the Insurance Act 2015 with a Slight Blemish

Violence Against Women in Palestine and Mediocre Accountability

Is Pornography Merely Obscene? Feminist Perspectives on the Regulation of Pornography

Case Comment: Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556: Judicial Apparent Bias and How It Affects the Parties

Case Comment: Heneghan v Manchester Dry Docks Ltd: The Limits of the Fairchild Exception

Copyright Protection of Fictional Characters in Films:

U.K. and U.S. Perspectives

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Bashayer Al-Mukhaizeem

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Copyright law grants a commercial monopoly over original expression embodied in fictional characters for a specific time. Thus, the copyrightability of created characters depends on their originality. However, free speech, fair use, and the public domain should not be affected by copyright protection. Conversely, the ideas which the characters are based on are outside the sphere of copyright protection. Problematically, it is not always easy to draw a clear, consistent line distinguishing between the elements of fictional characters which are protected, and those which are not. This paper scrutinises the U.K. and the U.S. Jurisprudence in order to clarify their perspectives on this matter.

Key words: Copyright protection - fictional characters - films - idea/expression dichotomy.

1. Introduction

Fictional characters are regarded as valuable commodities. Copyright protection provides the creators of fictional characters with a legal tool to exclude others from using, exploiting, abusing and reaping financial benefits from their fictional characters for a limited duration of time.² Copyright only protects the physical elements of the work, such as creative expressive characters, whereas invisible intellectual inspiration is unprotected. This is known as the idea/expression dichotomy,³ which is applied to determine which aspects of a character are subject to copyright protection. Consider, for example, a film that depicts a celebration of a marriage between a rabbit and a giraffe. The writer intended to refute racism through the portrayal of the marriage between the 'long' giraffe and the 'short' bunny. In this case, using similar appearance with the writer's unique shape of characters, i.e. bunny and giraffe, will probably constitute copyright infringement. This is the case even if the infringing medium is different, such as writing a play with the same characters, and even if the story is based on a totally different subject matter. However, using characters with identical general attributes and the idea of combating racism in another film with real characters as an illustration may not infringe copyright law.

Authors use their imagination to cover an idea with an expressive character with distinct attributes.⁴ The author uses his thoughts to characterise specific characters and hence, he is the one who exploits the economic benefit of such characters.⁵ This is guaranteed through copyright protection, which prevents third parties from misappropriating the characters.⁶ If you are of the 1970s or '80s generation, you will probably remember The White Lion, a Japanese animated series which proximally resembles The Lion King. This resemblance is unlikely to be a coincidence.⁷ It is true that the story is different, but the characters are distinctly similar. For example, Scar in The Lion King and Bubu in The White Lion are both dark and have a peculiar left eye.⁸ The characters' names are similar too: for instance, Simba and Kimba.⁹ A letter supplemented with a petition signed by many Japanese artists was sent to Disney. The creators of The Lion King claimed that they knew nothing about the existence of The White Lion. The producers of The White Lion did not pursue legal action against Disney.¹⁰ If they did so, it is highly likely that the Japanese producers would win the lawsuit.

Despite the aforementioned points, the law in the area of fictional characters is, to a large extent, uncertain and confusing because the courts' decisions are neither predictable nor consistent¹¹ in both the U.K. and the U.S. jurisdictions. Neither the U.S. Copyright Act nor U.K. laws provide an explicit protection for fictional characters. There are different opinions about which category of copyright fictional characters can be classified in. These suggestions are explained in the next section.

2. Fictional Characters versus Artistic Works

The U.S. Copyright Act provides protection to, among others, pictorial and graphic works, motion pictures and other audio visual works.¹² In order to protect film characters from imitation and exploitation, they are likely required to be original.¹³ U.S. Copyright Act defines audio visual works as a:

…series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment...regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.¹⁴

There are three requirements in order to protect fictional character in the U.S., namely: 1) the character should be original; 2) the character should be regarded as an expressive work, and; 3) the work should be embodied in a tangible medium, which, in our case, is a film.¹⁵ Originality means not only independent work which is not copied from others, but also work that should be, to some extent, unique and unfamiliar.¹⁶ Thus, in the U.S., films are regarded as audio visual works and could be categorised as works of art.

Some commentators argue that fictional characters cannot be considered as artistic works on the basis that the characters' traits are not only depicted by drawings, but also from their behaviour and conduct throughout the film.¹⁷ For example, Cinderella's personality is peaceful and kind, and cannot be perceived in someone's mind unless watching the film. In United Artists v. Ford Motor, the plaintiff claimed that Ford used the plaintiff's character, the Pink Panther, in its car commercials.¹⁸ The court ruled that the animated cat featured in Ford advertisements was not qualitatively and substantially similar to the Pink Panther, thus, Ford was not an infringer. The courts refused to resort merely to the similarity in the physical appearance of the two characters. Instead, the court decided the case according to the characters' personalities, movement, colours and the music they were accompanied by.

Some commentators argue that the court should resort to the misappropriation of using a character similar to the Pink Panther rather than the detailed features of both characters.¹⁹ In Warner Bros. v. American Broadcasting, the court found that Ralph Hinkely was not infringing on the basis that there was no substantial similarity to Superman.²⁰ The court resorted to 'the total perception' test, which depends not only on the physical resemblance between the two characters, but also on the characters' attributes in the film. The approach of the court was plot-directed, thus the fictional characters in some cases cannot have an independent character as such apart from the storyline of the film. Thus, it cannot be regarded as an artistic work. However, when the first version of Mickey Mouse was created, the character was roguish, drinking beer and smoking. Thereafter, he was illustrated as a boyish and meek personality imparted with a sense of adventure.²¹ Thus, the character acquired new characterisation over the years. This indicates that a character can exist independently from a film, and then could constitute an artistic work. In Walt Disney v. Air Pirates, the court held that copying only the appearance of Disney characters outside the scope of their plot in film, i.e. without copying their characterisation in the storyline of a film, could constitute copyright infringement.²²

The prerequisite of originality is probably not a requirement under U.K. jurisprudence. Fictional characters could be considered, according to the Copyright, Designs and Patents Act 1988, which was extracted from British copyright law,²³ either as: 1) a drawing or painting, where originality is a requirement; or 2) a part of a film, where originality is not a requirement. However, the characters in a film script, which is regarded as a literary work, should be original.

3. Originality and Fictional Characters

In the U.K.²⁴ and the U.S. alike, there is a requirement of originality in order to protect expressive works in general.²⁵ Copyright law only protects original expressions which are not copied by others.²⁶ In a U.S. case, Feist,²⁷ it was held that copyrightability depends on originality. It was stated that the threshold of creativity is very low. Thus, novel aspects of characters are not pursued: if copyrighted fictional characters possess a 'minimal degree of creativity' or 'some creative spark', then that would be sufficient.²⁸

A fictional character could either be an idea, which reflects a general concept, or an expression, which embodies a detailed development of an idea.²⁹ Copyright does not protect basic facts,³⁰ on the grounds that there is no expression in facts, which are considered synonymous with ideas. If a fictional character's catchphrase is 'life is short, do whatever you like', such a simple factual phrase could become a part of a character, but it is unlikely that it could be protected. However, a character's more distinctive motto, such as 'life is but a story and you are the author', might be copyrighted as an idiosyncratic part of a character.

Each fictional character possesses two different components, namely the developed creative aspect of a copyrighted character, and the character's abstract outline, which is unprotected.³¹ In Detective comics v. Bruns, the court held that Superman's qualities, such as being a hero archetype, wearing a cloak and being benevolent, should be considered as ideas, and ideas are outside of the scope of copyright.³² Moreover, the court considered that neither choosing the word 'man' in the defendant's character, Wonderman, nor developing the powers of Superman, is infringing, because they reflected the meaning of an idea. Thus, these characteristics are not protected against copying. However, specific details of the strips are regarded as particular expression, which does enjoy legal protection.³³ Developed portrayals and detailed descriptions of Superman do not merely constitute a delineation of a philanthropic hero, but embody original expressions, which are subjected to copyright protection. The plaintiff is not entitled to monopolise normal features of Superman such as beneficence to humankind or feats of strength. Thus, the court concluded that Wonderman infringed the copyright of Superman as a result of copying more than the general features of Superman.³⁴The idea of a character will not be transformed into an expression unless the character is sufficiently described to reflect the meaning of uniqueness, distinctiveness and individuality of such a character. Only then will the character be an original expression and not merely an idea, and will therefore be protected.³⁵

Based on the above, before applying the protection, the issue of whether or not the character is original, expressive and well delineated enough to be protected by copyright should be scrutinised, in addition to whether or not the imitated character is substantially similar to the authentic one. If yes, the subsequent character infringes copyright of the pre-existing character.³⁶ In Mattel v. MCA, Mattel brought an action against MCA Records' song, Barbie Girl.³⁷ Barbie is a character used in many series and films. However,