In their articles, Zahr Said (2013) and Mark Rose (1988) both explore and try to define the notions of intellectual property and copyright. Although they focus on different aspects of this topic – Rose defending the author as the main proprietor and Said focusing mostly on the individual copyrights of characters – both share similar questions such as: What is considered as intellectual property? Who owns the original text? What is, or what can be, owned? What entails a copyright infringement and how can an author defend himself from such an accusation? These questions are difficult to answer, as Said and Rose demonstrate, for the notions of ownership of literary texts and copyrights seem to ambiguous and biased at best. I would like to try to answer these questions, or at least open a debate, using four different examples: the graphic novel Kill Shakespeare, Harry Potter’s fanfiction, the Fifty Shade trilogy, and the musical parody Spell Block Tango.
Quickly summarized, we understand copyrights as the protection of an author’s original text. Our contemporary understanding of copyrights comes from the Copyright Act of 1976, as explained by Rose, which was established to promote the creation of original material. This act grants authors, rather than the publishers, the right to determine when or how to copy, perform, distribute, or display their works. A copyright infringement thus occurs when a second author uses the preexisting work to create any sort of derivative work. According to Rose, “parties may infringe the rights of original authors in their copyrighted works or characters in a number of ways: by reproducing, displaying or performing the works verbatim or distributing them without authorization” (Rose, 54). The key word in Rose’s definition are verbatim. What happens when an author uses just some elements of a preexisting text, but not everything? This could fall under the case of “fair use”.
Beyond the general rules of copyright, there are certain circumstances that are allowed. These are called “fair uses defenses,” a legal defense used when an author is accused of infringement. Per the Lemoine Law Firm, there are a few factors used when analyzing a possible case of “fair use”:
- Whether the original copyrighted work is commercial or non-commercial
- The purpose of the derivative work: criticism, commentary, scholarship, etc.
- The degree of transformation of the original work
- The substantiality of the portion used of the original text
- The effect of the derivative work in the market
Basically, if a text is copyrighted for purposes of criticism, is distinguishable transformed, presents new and original work, and is not used for profits, it can fall under the category of “fair use” and the author won’t suffer any consequences. Based on this definition, a parody work is a sort of “fair use”. We understand as “parody” a derivative text that aims to comment and/or criticize the original work or an element of it. In this sense, a parody is transformative, usually from serious to silly but not restricted by this. A parody uses a substantial amount of the original text, but only as much as necessary to recall and reference the original. An author of a parody must include original material as to separate both works. However, it is this question of substantiality that complicates the distinction between parody and copyright infringement. How much originality is needed? How much can an author take from the original work? And most importantly, what can he borrow from the original work? Rose summarizes this debate by explaining that:
First, the proponents of perpetual copyright asserted the author’s natural right to a property in his creation. Second, the opponents of perpetual copyright replied that ideas could not be treated as property and that copyright could only be regarded as a limited personal right of the same order as a patent. Third, the proponents responded that the property claimed was neither the physical book nor the ideas communicated by it but something else entirely, something consisting of style and sentiment combined. (Rose, 65)
Based on this, ideas cannot be treated as property, and thus cannot be copyrighted. However, the Copyright Act protects the execution or expression of an idea by an author. For example, the idea of a girl fighting for her freedom in dystopian world is too vague and cannot be copyright protected, but the story of Katniss Everdeen can. This at least clarifies the question of the metaphysical ownership of the book and what can be used in a parody. Nonetheless, one could wonder, if an expression cannot be duplicated, what happens to the use of famous characters in parodies?
In theory, characters are or should be automatically protected in a copyrighted work as they are part of it. However, as Said exposes, this is complicated by the relationship between readers and characters. He explains that copyright laws have not taken into consideration evidence that readers work a lot with characters. Characters evolve per their readers, they can be completed by their imagination. In this sense, characters seem o stand by themselves, independent from their work. Readers become attached to characters, sometimes even more than to the story itself. This makes them more valuable for authors for “creating enduring characters increases the likelihood that audiences will buy subsequent works” (Said, 4). However, whether the authors can protect their characters or not is very unclear. There are too many variables, such as the nature of the character and their relationship to the text, what do they contribute to the story, and how they are described and delineated. At the end, it is even unclear who the characters belong to, especially if we take into account Posner’s view of how “word portraits” leave the characters to the imagination of the reader, which arguably makes the character more of a creation of the reader instead of the author. This is particularly relevant to the case of the graphic novels Kill Shakespeare.
Created by self-proclaimed comic nerds Conor McCreery and Anthony Del Col and published by IDW, the Kill Shakespeare graphic novels were first published in 2010. Kill Shakespeare is somewhat similar to the DC Comic Fable (2002). Fable takes many different myths and fairy tales characters, from Cinderella to Little Red Riding Hood, and reimagines them in modern-day New York. Similarly, Kill Shakespeare takes William Shakespeare’s characters and places them in an alternate universe where they all interact with each other. Hamlet, the protagonist, meets King Richard III, Juliet, the Weird Sisters, and many others. Obviously, the plotlines themselves are transformed so that they all interlaced with each other and follow the main plot of the comics, that of Hamlet’s quest to find the great wizard/god William Shakespeare. Yes, the Bard himself is a character in these graphic novels.
Kill Shakespeare is not an adaptation of Shakespeare’s plays not an illustrated play. It is a parody of not only the plays, but the author himself. One might wonder, what sort of parody? It could be a critique. McCreery comments on how students tend to be forced to read Shakespeare, implying that it is a tedious task (McCreery, 448). Could we see Kill Shakespeare as a critique of the medium and a way to make students want to learn about the English writer? It is also a commentary and praise of Shakespeare’s works, for McCreery claims to have been a huge fan of Shakespeare as a student mostly because he saw an analogue between Shakespearean characters and his favorite comic superheroes: “Caliban was Wolverine” (McCreery, 449). Perhaps the parody intends to both criticize and comment, that’s not the main problem. The important questions are: what is being parodied? What are McCreery and Del Col borrowing from Shakespeare? Hypothetically, could we make a case for copyright infringement?
Now, although the graphic novel and the original plays differ quite a lot, there are certain elements that can be found in both. For example, Hamlet’s lines when he kills Polonius are remarkably similar, almost taken verbatim (Kill Shakespeare, p. 9 // III.vi, 32-42). Some plot elements remained but were transformed, such as Romeo and Juliet’s romance. However, the main element McCreery and Del Col took from Shakespeare’s canon are the characters. The characters remain the same. Even their behavior is the same, such as Hamlet’s melancholic nature and Lady Macbeth’s seductive danger. Would this be enough to open a copyright case? It’s complicated. Although these are well known characters with famous linguistic tendencies, catchphrases, mannerisms, relationships, and emotional traits, per the legal definition, Kill Shakespeare is clearly a parody work. Thus, it falls under the “fair use defense” and cannot be categorized as an infringement. However, as Said explains, if a character constitutes what the story is, they could be copyrighted independently. We could debate for hours whether Hamlet is the most important character in Hamlet, but we cannot ignore that he does constitute a big portion of the play. Same with Rome and Juliet, Macbeth and Lady Macbeth, etc. Could we then say that McCreery and Del Col are committing a copyright infringement? Probably not. Here is where Posner’s rationale about the reader’s imagination enters. Although in regards to personality traits the characters appear to be exactly the same as in Shakespeare’s original text, visually we have no idea if they resemble Shakespeare’s idea. We do not know much about their physical attributes and we cannot base ourselves in actors or actresses that have portrayed them before because they are all too different. The characters in Kill Shakespeare share the name given to them by Shakespeare, but physically they are owned by McCreery, Del Col, and Andy Belanger, the graphic artist.
Now, we can argue about the ownership of characters based in their delineation in Kill Shakespeare, but we can only argue about the difference between copyright infringement and parody in a hypothetical case since Shakespeare and his work are actually public domain. It is impossible for McCreery and Del Col to do a copyright infringement by using Shakespeare’s original text, even if they copied it verbatim. A better example for this are fanfictions.
Fanfictions are, as the name implies, works of fiction written by fans of particular canonical universe such as Star Trek, Doctor Who, Buffy the Vampire Slayer, and many others. They are pieces of fiction created by authors who use material from pre-existing works. Perhaps the biggest collection of fanfictions right now is that of the Harry Potter series. Copyright law requires that writers who use pre-existing material ask permission to the original author. Although fanfictions writer do not contact J.K.Rowling for her permission and usually claim they are merely “Taking the characters out to play”, the writer has tweeted about her support of fanfiction writers. Legend says she even has a FanFiction.Net profile! Yet, one cannot help but to wonder: are fanfiction legal? Thinking about the factors that allow for a “fair used defense”, we could say that they are. Fanfictions usually make no money for they are published online. They sometimes quote Rowling’s books verbatim, but only the necessary amount to establish the universe and context of the work. Also, most of the fanfiction writers labeled their works as AU (alternative universes) and their characters as OOC (out of character). They claim to merely use Rowling’s ideas and transform them. However, the problem is that whether the fanfictions are AU or canon-verse, the characters are problematic, no matter if they are OOC or follow the canon mannerisms and emotional traits. Said explains:
Courts have protected characters’ names (when accompanied by at least some other characteristics); characters’ catchphrases; visual depictions of characters; and so on. What literary understandings of character show is the oversimplification of this view of characters’ easily discernible relationship to their texts. (Said, 32)
In the case of Harry Potter fanfictions, the physical attributes of the characters are problematic. Perhaps due to its popularity and its cinematographic adaptation, every reader has more or less the same vision of the character. The words used to describe them in the fanfictions are sometimes the exact same words used by Rowling. It could still be argued that some of these descriptions are a bit vague and/or can include a broad range of people, but what about Harry’s lightening-shaped scar? How many literary characters have that scar? What about Voldemort’s snake face with red eyes? What do we make of this?
Another problem is that not every work of fanfiction is free. Some writers can and have made money out of their fanfiction works. Some web platforms make money out of publishing fanfictions. When fanfictions started with Star Trek and Star Wars, many authors profited by selling their novel-length, paperback-printed fanfictions. However, perhaps the most infamous case is that of the book trilogy Fifty Shades. EL James, under the pen name Snowqueens Icedragon, started her series as a fanfiction titled Master of the Universe, an AU based on Stephanie Meyer’s Twilight Saga. She has been very vocal about this. Her main characters, Anastasia and Christian, are based on Bella and Edward. EL James changed their names, but their physical and personality traits remain the same. In addition, many argue that Master of the Universe is also based on the film adaptation of Lauren Weisberger’s The Devil Wears Prada. From this she borrowed the idea of an interoffice relationship between an older boss and a younger assistant. This might be evidenced by her pen name, a common name in The Devil Wears Prada fandom due to the main character, Miranda Priestly, being called a snow queen, ice lady, and dragon lady. Now, whether this is true, we could argue in favor of Fifty Shades based in Rose’s argument:
The same ideas might very well occur independently to different people. Would that mean that each would be a separate proprietor of the same idea? Could Newton claim an exclusive property in the laws of the universe? (Rose, 61)
Nonetheless, Fifty Shades is still a well-known fanfiction from which EL James has profited tremendously. What do we make of this? Even if she changed names and the setting, it is known that she “borrowed” the core of the plot and the characters’ traits from a pre-existing works? Again, she has been very vocal about this. Should this be considered as copyright infringement? Once more, it is complicated. Due to its role in the market, we could argue that yes. However, we could also argue that the plot is a common idea and as such does not qualify as copyright protectable material.
Finally, what happens when a fanfiction/parody work not only makes money but is based on visually delineated characters? Posner’s rationale explains that literary characters are tricky to be protected by copyrights because readers usually must complete the image with their imagination, no matter how detailed the “word portraits” are. But what do we do with characters from visual media, such as cartoons? Take for example Todrick Hall’s YouTube parody titled Spell Block Tango. Hall remakes the famous “Cell Block Tango” from the musical Chicago using famous Disney villains: Scar, Ursula, The Queen of Hearts, Maleficent, the Evil Queen, Cruella De Vil, and Captain Hook. About theater performances, Hapgood (1992) debates:
Should an heir or agent exercise such total control? Who but the playwright can truly say whether changes are or are not true to the spirit of the work? As times and styles change, there is more and more need for renovative mediation between the play and its audience. In turn, performers might refrain from attempting to update plays whose authors are still alive, without explicit approval in advance, devoting more of their efforts instead to plays already in the public domain and labeling their freer versions with phrases like “adapted from” and “based upon.” (Hapgood, 53-4)
The problem with Hall’s parody is that it is adapted from two different universes, one that still has active copyright, Kander’s Chicago, and the Disney universe, which is ambiguous. Focusing on Chicago, the parody is problematic because it re-uses the musical’s score and iconic dance, even if most of the lyrics were rewritten to fit the story of the Disney villains, with clear exceptions as the chorus: “he had it coming”. In the case of Disney, one could argue that most of these characters are public domain, such as the Evil Queen from Snow White. However, Hall did not use just any version of the characters, but Disney’s version. This is comparable to the argument that although Shakespeare is public domain, the Riverside Shakespeare is not. Furthermore, Hall also profited financially from this parody, as many YouTubers do. He even did several tours around the country. Keeping in mind Disney’s unforgivable nature, it is highly probable that Hall received permission to do this parody. Nonetheless, it is a case worth discussing.
Overall, just as Said and Rose explained in their articles, the question of intellectual property and copyrights is very complicated and ambiguous. Just like any legal situation, different cases of copyright infringement must be treated and analyzed differently. Some of the examples discussed in this paper present this ambiguity, others are more straight forward. Mostly this paper is filled with unanswered questions. My hope is that they will serve to open our discussion on parody and literary property.
Hall, Todrick. Spell Block Tango. Web: https://www.youtube.com/watch?v=GAUZIw95ueM
Hapgood, Robert. “The Rights of Playwrights: Performance Theory and American Law.” Journal of Dramatic Theory and Criticism VI.2 (1992): 41-59. Print.
Holland, Peter. “Selling Shakespeare: Comic Books, Novels and Manga.” Anglistik: International Journal of English Studies 25.1 (2014): 77-89. Print.
McCreery, Conor, Anthony Del Col, and Andy Belanger. “A Sea of Troubles.” Kill Shakespeare. Vol. 1. IDW Publishing, 2010. 1-148. Print.
McCreery, Conor. “Shakespeare and Four-Colour Magic.” Living with Shakespeare. Ed. Sussannah Carson. New York: Vintage , 2013. 444-65. Print.
“Parody, Fair Use, Or Copyright Infringement?” Lemoine Law Firm. Web. 18 Feb. 2017.
Rose, Mark. “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship.” Representations 23.Summer (1988): 51-85. Web.
Said, Zahr. “Fixing Copyright in Characters: Literary Perspectives on a Legal Problem.” Cardozo Law Review 35 (2013): 1-57. University of Washington School of Law Research Paper No. 2013-09. Print.
Suntrust Bank v. Houghton Mifflin Co. No. 01-12200. United States Court of Appeals, 11th Circuit. 10 Oct. 2001. Print.