Copyright Advisory Services

Jack Sparrow, everyone’s favorite lovable scamp and star of the Pirates of the Caribbean movies is the subject of a new lawsuit, that claims he wasn’t Disney’s creation, but that of three other screenwriters.

As the story goes, Arthur Alfred, Ezequiel Martinez, Jr., and Tova Laiter, submitted a screenplay entitled Pirates of the Caribbean to Disney in August 2000. Disney passed on their script, but did not immediately return it to its authors, as is customary in the film industry, and instead supposedly copied some parts of it. Within the script was a character named “Davy Jones” who is allegedly a lot like Jack Sparrow. So, the plaintiffs argue that Disney read their script, copied the character and some other parts, and made its Pirates movies without getting permission from the plaintiffs. And Disney owes them for it.

In their complaint, Alfred, Martinez, and Laiter argue that the features that show that Jack Sparrow is a copy of Davy Jones is that both are humorous and “good guy[s]”. They write that before Davy Jones, pirates were “traditionally (and historically) evil, loathsome, feared and enemies of mankind … [P]irates in film, while handsome or good-looking, have not been depicted as having a sense of humor, until ‘Captain Jack Sparrow’ in the Pirates franchise.” Accordingly, they claim that they invented the idea of a funny pirate with Davy Jones, and Disney copied that idea in creating Jack Sparrow.

To be blunt, this argument is ridiculous. Apparently they’ve never seen Ice Pirates (1984), Hook (1991), or The Pirates of Penzance (film 1983; Gilbert and Sullivan operetta 1879!), all of which are about funny pirates. And those are just the first that come to mind! I’m sure that with about 5 minutes of research, I could find more funny pirates in film history that existed before Pirates of the Caribbean.

Moreover, even assuming that there had never been a funny pirate before Davy Jones (which is definitely not true), I find it hard to believe that, just because the plaintiffs came up with the idea for a funny pirate, Disney did anything wrong under copyright law by creating Jack Sparrow. First, it’s harder for characters to have copyright protection than you may realize. As the 9th Circuit writes in Rice v. Fox Broadcasting, 30 F.3d 1170, 1175: “While characters are ordinarily not afforded copyright protection … characters that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the copyrighted work” (internal citation omitted). I doubt a “funny pirate” is “especially distinctive” enough to receive copyright protection.

Second, there is a problem here because of copyright’s idea/expression dichotomy. See, e.g., Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Copyright does not protect ideas; it protects the expression of those ideas. As an example, J.K. Rowling doesn’t own the idea of a boy wizard who goes to wizard school and fights evil wizards. That isn’t Harry Potter; it’s just a character sketch. However, once Rowling added the other elements of the character like his lightning bolt scar, that his parents died protecting him from Voldemort when he was a baby, so he was raised by his unmagical relatives, and that he goes to a secret school called Hogwarts where he learns magic from Dumbledore, Snape, and McGonagall, we start to see a copyright-protected character.

So, even if Disney took the idea of a funny pirate from the plaintiffs in this case, that doesn’t mean the film studio violated Alfred, Martinez, and Laiter’s copyright. Simply stated: funny pirate + good man does not equal Jack Sparrow. Jack Sparrow is the sum total of all the many character pieces that are in the Pirates movies.

Ultimately, I doubt this case will go very far. But I’m still going to pay attention to it, because it will be interesting to see what happens. Maybe Disney will settle, and we won’t hear about it again. Or maybe Disney will fight back, and we can see if the court agrees with me, or there is more to this story than meets the eye.

With today’s release of Thor: Ragnarok (a movie I’m quite excited about), I want to point out a case that implicates the copyright of any number of CG characters from movies like it. As reported in this story from The Hollywood Reporter, the owner of software that captures facial recognition used to create and animate characters like everyone’s favorite green smashing machine, the Hulk from The Avengers, is now suing Disney, Fox, and Paramount, over their use of the software and the IP that comes from it.

This case deals with a interesting/strange copyright question. Rearden, the plaintiff, who owns the copyright to this software, argues that he also owns the copyrights to the output of that software: that is, the CG characters. Huh?

While I find it hard to believe that this argument will win the day, this is a case I want to keep my eyes on, if just because these CG characters are everywhere in modern movies. Since the software requires CG artists to create the characters, it seems to me the creator of the software that the artist uses isn’t the owner of the copyright. Isn’t the artist himself a more logical option? Or the producer of the movie, as the employer of that artist. Or perhaps no one owns the character, if the software does all the work on its own. After all, machines, like monkeys, can’t be authors. So I’m doubtful Rearden will win, but who knows? Stranger things have happened in the law.

Either way, I’ll be interested to see what happens.

In honor of Halloween, the excellent blog, Plagiarism Today (which I’ve referred to before), has a post recapping 8 stories it has published on copyright and horror movies. Each one is great — there’s a whole post about the Rocky Horror Picture Show and copyright law! sadly, though, it doesn’t address copyright protection for the Time Warp — but the in particular one that caught my eye was How A Copyright Mistake Created the Modern Zombie. Before reading the post, I had no idea about this story, but it’s fascinating for both copyright law and for the history of film. I won’t spoil the surprise for you; go read it for yourself. It’s worth your time.

While we’re on the topic of zombies and copyright, I should mention that “zombie copyrights” are actually thing (sort of). Back in 1997, Adam Segal wrote an article entitled Zombie Copyrights: Copyright Restoration Under the New [sec] 104A of the Copyright Act. This article deals with one of the more curious provisions of copyright law: Copyright restoration for foreign works. Normally, when we think of works in the public domain, we think they are free to use forever. However, under the right circumstances, some works can come out of the public domain and come back under copyright protection. Just like zombies, they come back from the dead.

The reason the law provides for copyright restoration stems from a conflict between the way old US law treated copyrights compared to how other countries do. In 1989, the United States officially became part of the Berne Convention. This treaty — the oldest and most important multilateral treaty on copyright law — requires member countries to offer protection to all works that are still protected by copyright in their counties of origin. However, when the United States became a member of Berne, many works from around the world were in the public domain in the United States for failure to follow the “formalities” required by US law.

In copyright-speak, a formality is any sort of procedural hoop creators must jump through before their works receive protection. In the US before 1978, these formalities meant that people had to put copyright notice on their published works, or the works would enter the public domain. Similarly, copyright holders had to renew their copyrights after 28 years, or those works would fall into the public domain.

It’s easy to imagine how foreign authors who produced their works in countries without copyright formalities could have neglected to do one of these things and accidentally lost their protection in the United States. So, many foreign works entered the public domain unintentionally, and Berne required the US to do something about it.

So, in 1994, Congress passed the Uruguay Round Agreements Act. Codified as 17 U.S.C. sec.104A, this statute restored protection for foreign works that were in the public domain in the United States for failure to comply with formalities, but are still protected in their countries of origin.

This statute eventually found its way to the U.S. Supreme Court in Golan v. Holder, which affirmed Congress’s authority bring some copyrights back from the “dead” (the public domain). As such, this law isn’t going anywhere anytime soon and zombie copyrights may be coming to get you, Barbara….

Though the name Richard Posner may not mean much to you, he is well known to lawyers and law students around the United States. Until suddenly retiring in September, Posner was for many years one of the most outspoken and influential judges in the country. In his books, scholarly articles, posts on Slate.com, and, of course, his judicial decisions, Posner used a view of the law influenced by economics to decide many important cases and influence the development of U.S. law. For many years, Posner has been both an influential jurist and an outspoken critic of the judiciary, including the U.S. Supreme Court. Indeed, shortly after his retirement, he published a book entitled Reforming the Federal Judiciary: My Former Court Needs to Overhaul its Staff Attorney Program and Begin Televising Its Oral Arguments, in which he issues serious criticism of his former court.

From his position on the 7th Circuit, Posner wrote countless important decisions, including several on copyright law. I still remember the first time I really noticed Posner’s writing. It was in my law school copyright class and his decision in Gaiman v. McFarlane. In this case, Neil Gaiman, the popular author of books like Sandman, American Gods, and Good Omens (with Terry Pratchett) sued Todd McFarlane, one of the most famous comic artists/authors of all time, over characters from McFarlane’s original comic book, Spawn. McFarlane hired Gaiman to write several early issues of the comic, and together they developed one story line that features a Medieval Spawn, an angel, Angela, and a mysterious homeless man, Cogliostro. Gaiman argued that they both owned the copyrights as joint authors because he and McFarlane created the characters together. McFarlane, for his part, said that Gaiman only provided bare character sketches, and the characters really came alive because of McFarlane’s artistry.

In his decision, Posner ultimately held for Gaiman, writing that both Gaiman and McFarlane created the characters together, and both should own the copyrights.

The Trademark & Copyright Law blog, an excellent intellectual property blog, discusses several decisions on copyright by Posner, including this one. It’s worth your time to check it out. And now that Posner is off the court, I doubt we’ve heard the last from him. Indeed, I’m certainly looking forward to whatever Posner does next.

On September 15, 2017, the US Copyright Office released a “discussion document” detailing its suggestions for how Congress should update 17 USC 108, the section that grants a number of exceptions to copyright for libraries. And interestingly, there’s a lot of great news, here. While this document is just the first step toward copyright reform for memory institutions, it’s a good one.

This document is the result of over a decade of conversations, studies, and consideration about how best to revise section 108 in a way that balances the interests of the many stakeholders involved while addressing the way in which memory institutions work today in light of modern technology.

The result of these many conversations suggests updates to nearly every part of section 108. In the words of the Copyright Office: “The current section 108 language is insufficient to address digital works and digital transmissions, does not reflect the way that libraries and archives actually operate, and excludes museum, among other constraints.

Though a full analysis of the revisions proposed in this discussion document is outside of the scope of this blog, I want to highlight three particularly interesting parts.

First, the document proposes a fundamental reorganization of section 108 to make it easier to understand and use. Laws, regulations, judicial decisions, and other legal documents are all too often esoteric and nearly impossible for anyone but attorneys to decipher. So, this proposal is a welcome surprise, and hopefully would make section 108 much more user-friendly.

Second, the Copyright Office suggests adding museums to the scope of 108. Currently, section 108 only mentions libraries and archives in its text. As such, other types of similar institutions are unable to take advantage of 108’s exceptions. So right now, museums that are associated with libraries and archives can use these exceptions, but smaller museums cannot. This amendment would change this, adding museums to the list of institutions covered by 108’s protections.

Third, the document suggests a number of amendments to copyright law to bring it up to speed with the realities of digital copying. For instance, currently libraries and archives can make up to three copies of unpublished works for preservation. Not only does the discussion document suggest changing “publication” to “dissemination to the public” because of how the internet has blurred the definition of “publication.” It also allows libraries to make copies as “reasonably necessary” instead of limiting the number to three, recognizing that this arbitrary limit doesn’t make sense with the nature of digital copying.

Altogether, this discussion document is a very interesting start toward reforming 108, and maybe even points toward a conversation about a broader update of copyright law. Though we have no idea if/when Congress will do anything — certainly the Copyright Office has offered legislative suggestions that Congress has ignored several times in the past — it’s still refreshing to see that the agency is consciously aware of the limitations of copyright law due to its age and that libraries, users, and rightsholders are all being hurt because of the outdated laws. So we’ll keep our eyes open to see what happens.

Meanwhile, if you would like to read all 72 pages of the discussion document, you can find it here. If nothing else, it’s worth your time to check out the short and easy to understand summary at the beginning.