Author: Laura

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.

 

 

 

References:

 

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.

I’ve attached a passage from Act I of King Lear, from two different editions of the play. I first selected Harvard Classic’s edition of King Lear. Charles W. Eliot started the Harvard Classics anthologies in order to create a sort of reading course easily available to anyone interested in receiving a general liberal education. He selected what he considered some of the most important literary texts, including many of Shakespeare plays. In the edition of Elizabethan Drama, which includes Marlowe and Shakespeare, Eliot wrote brief general introductions to each play and some footnotes. However, the edition is troublesome because it eliminates line numbers and most footnotes are merely definitions of terms. In general, this edition is not very helpful for scholars or literature students. Nonetheless, while going through the first scene of King Lear, I was drawn to one peculiar footnote about line 82 (based on H.H. Furness’ edition of the play), when King Lear addresses Cordelia and asks her to speak about her love. Eliot remarks that the Quarto reading of this line is “Although the last, not least in our dear love” instead of the Folio’s version he used, “although our last and least, to whose young love”. Being fairly familiar with Laurence Olivier’s (1983) and Ian McKellen’s (2008) interpretation of King Lear, used to hearing them both say “our last, but not least”, I am intrigued about the reason behind the different editions of this particular line and what it means.

Looking at Horace Howard Furness’ edition of the play, which includes long footnotes and seems to be more useful for scholars and students, I noticed that there is a lot of debate about this line. Furness quotes several critics such as Malone, Dyce, Staunton, White, Hudson, Schmidt, and others. According to Malone, the correct formula should have been “last not least” as it is applied to people highly valued to the speaker, and Cordelia is clearly Lear’s preferred child. However, White explain that in King Lear, “least” is used to allude to the personal traits and family positions of Cordelia, the fact that she is Lear’s youngest child. In this sense, Furness explains, the Folio formula is more accurate for it demonstrate that Cordelia was “her father’s little pet, while her sisters were big, bold, brazen beauties” (p. 14). Furness also discusses how according to Schmidt certain performances of the play might have influenced the reprinting and alterations of this line. At the end, Furness gives his own opinion, leaning towards the Folio’s formula being more in accordance with the nature of the play and the relationship between Lear and Cordelia.

I’d be interested to write about other possible readings of this line and its different variations, since I always took for granted that the correct formula is “last, but not least”, thinking that the Folio’s formula must have been a printing mistake (another possible explanation, according to Dyce and Staunton).  Furness’ notes seems to be a good starting point to research this topic, but it’d be interesting to look into newer research about it, if there is any.

 

 Sources:

Eliot, Charles W. Elizabethan Drama: Marlowe, Shakespeare. Danbury, Connecticut: Grolier Enterprises Corp., 1988. Print. Attachment (C.W. Eliot)

Shakespeare, William. A new variorum edition of Shakespeare: King Lear. Ed. Horace Howard Furness. Philadelphia: J.B. Lippincott, 1880. Web. Attachment (H.H. Furness)

 

 

In this article, Friedrich Kittler attempts to give a detailed but also brief account of the history of communication media, which he analyses in terms of, and compares to, information systems. Although Kittler states that his purpose is to “to discuss the history of communication technologies ­ as far as this is humanly possible ­ in general terms,” he packs his essay with military example and some appeals to other critics and theorist – such as Shannon, Locke and Freud – that sometimes seem to be uncontextualized. However, simply put, Kittler divides the history of communication technologies in two main eras: the Writing and the Technical Media. These two eras are further divided into two blocks: “Scripts” and “Printing” under Writing, and “Analog” and “Digital” under Technical.

Kittler begins by pointing out two main problems at the moment of historicizing the evolution of communication. First, he talks about the practical problem, the fact that the evolution of communication is not well documented. Second, the methodological problem, trying to define communication in relation to particular time periods and spaces. He also criticizes Shannon’s elegant model of information, saying that it is better to look at the actually evolution of communication and how these communication technologies actually proceeded in the first place. Kittler focuses in the transition from orality to the written word, and the transition between writing to technical media, looking at how the former results in the decoupling of interaction and communication and the latter in a decoupling of communication and information. Beside looking at the different advantages brought by the development of these technologies in terms of communication, Kittler is concerned about how these technologies were/are used to preserve the information being transmitted.

The first era of communication, Writing, is divided in “Script” and “Printing”. Kittler details the first mediums of communication and information storage in the “Script” period – manual writing and copying – starting with transportable writing surfaces such as bamboo in China, unfired clay in Mesopotamia, and papyrus in Egypt. The papyrus was a much easier method of communication due to its lightness, which made it easily transportable. However, it was fragile and impermanent, unlike the previous bamboo and surfaces. Also, it was rather difficult and time consuming to look up information in papyrus rolls. The arrival of the codex in 140 AD not only made indexing and thus reading easier, but it also proved to be a more durable medium. In the 13th century, paper arrived in Europe from China, which quickly was adopted by universities and scribers as their preferable writing surface due mostly to their durability.

The “Printing” period begins with Gutenberg’s invention of printing. Printing already existed in China and Korea. However, Gutenberg’s innovation was creating a stamp with movable letters. Kittler remarks that the development of new media does not make old media obsolete, but rather reassigns the old media to other places. In the case of printing, this new media made copying books easier and faster, and allowed for easier data processing by numbering pages and having identical copies of the same edition of a particular book. Handwriting, however, was not discontinued but used for state and other official documents, as well as letters and seals. Later, Kittler points out, the creation of typewriters in 1880 leveled out the difference between writing and printing.

The era of Technical Media is distinguishable from the Writing era in how the mediums and processes used are faster than human perception and are formed through the code of modern mathematics. Starting with analog technologies such as telegraphy, Kittler explains how this media had world-wide repercussions. Telegraphy substantiated the decoupling of information from communication by using electromagnetic waves. The remote telegraphic control via landline made possible for a faster traffic of goods. Once detached from the ground, however, the traffic of goods and information was not only even more accelerated, but became international and resulted in information time made discrete. It is this detachment from the ground what also led to inventions of media such as the telephone, film, gramophone, and the radio. These technologies allowed for the amplification and manipulation of information at a greater scale. However, it was the radio what had the effect of standardizing unwritten languages and creating a sort of “secondary orality”.

With the development of digital technologies comes a transformation of the input of data. The digital era properly starts with the Turing machine, the predecessor of computers, created in 1936. Turing’s computer was able to storage, index, and process both numerical and alphabetical data using a binary system of data input. Although at the beginning the Turing machine was slow, his technology served as a base for the development of new machines. It was John von Neumann who managed to design a microsecond-fast computer in 1945. Von Neumann’s system – which included a central processing unit, a write-read memory, and a system for sequential transmission – articulated the fundamental structure of automatic hardware technology used today. Digital data, with its signal processing and ability of transmission, allows for information to break physical parameters. However, Kittler concludes his essay by exclaiming that “the day is not far off when signal processing will reach the physical limits of feasibility,” and this is where the history of communication will end, when the artificial intelligences overhauls each other and no longer reference the individual and mankind, using mathematical algorithms to control the processing of commands by themselves.

Overall, Kittler’s article is pretty straightforward. Since it is an outline of the evolution of communication technologies, there was no much space to disagree with him. However, one of the main questions that came up while reading Kittler’s article is the idea of safeguarding information. Kittler recognizes that those earlier mediums, the pictographs written on clay tablets, remained intact through time while later mediums such as papyrus proved to be less durable. However, he also seems to suggest that the further we go – the creation of the codex, using paper, the analog technology, and the digital technologies that can storage relatively big amounts of data –, our media becomes more durable and safe. He doesn’t seem concerned about the possible loss of information saved through digital technologies. Can we truly conclude that the digitalization of information is the cure to the disintegration of information? It is true that it does last longer than newspapers, for example. However, digital data constantly require software updates and maintenance, and sometimes these updates delete data/information and/or make it obsolete. Also, there is always the debate about cultural memory and the fear that digitalizing everything will make us lose or damage our cultural memory – not that I particularly share that fear, but it is worth discussing.