Fair use presupposes expressive material that is both copyrightable and copyrighted. (I leave for another day the issue of misappropriation of material previously submitted to defendant under contractual terms). Uncopyrightable material in copyrighted work is not protected so there is no issue of unfair taking. Scenes a fair discussed in a recent note are generic elements, as are character types and common expressions. They are not “owned” by any one person, but are infinitely exploitable common property; part of the creator’s culture’s inheritance. They are as much in the public domain as works no longer under copyright created prior to 1923. All clay! Court decisions are instructive in separating protected from common property. The question is, What has the creator done with her clay?
In Alexander v. Murdoch, an unpublished decision from the Southern District of New York (May 27, 2011) plaintiff complained that defendants plundered plot, characters and locale. (Masters also plunder their cultural artifacts, but this is the province of literary critics, not lawyers). The dispute in Alexander involved plot and characters in a television script. The basic concept of copyright is that ideas, themes, characters and locale are not protected; expression is. “[W]here a copyrighted work contains both protectable and unprotectable elements, courts apply “a more discerning observer test, which requires substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work].” In a police drama, it is expected that there are policemen and suspects and perpetrators. In a family drama there are interactions among family members. Similarities are unavoidable whether or not the accused is familiar with the creator’s work.
The two works in Alexander are comedic family dramas. “[T]he comedic devices shared by both works and identified by the plaintiff — characters driving recklessly, men slapping each other on the backside, people drinking alcohol as a means to cope with a stressful family situation — are common plot elements and thus are not subject to copyright protection.” (I am omitting citations, but emphasize that there is a pedigree of cases). When you abstract fictional plots to a sufficient level of generalization they will be found similar to other plots in the same genre. “Copyright protection does not extend to stock themes commonly linked to a particular genre.” Thus, “basic plot ideas involving voodoo as a dramatic exposition of culture or a missing body as a comedic prop are not protectable.” The Court found that the “remaining plot similarities identified by the plaintiff are alleged at an overly-abstract level of generality.” At that level of generality, plots do not merit copyright protection.
A similar course of analysis is applied to characters. The plaintiff in Alexandra first alleges that Loony Ben (its creation) and Modern Family (defendants’ creation) are substantially similar because both (one example among a full list) depict characters singing off color songs at family gatherings. “Yet the details of these scenes render them significantly different.” Transformations from “dowdy” to “beautiful” are off the shelf elements. “There is simply no similarity between Kelly’s transformation from a librarian with ‘glasses, no make-up and dowdy, unflattering, spinster clothes’ into a stripper who provides entertainment at bachelor parties and Claire’s decision to change from pajamas into street clothes and put on lipstick upon learning that handsome firefighters are coming to her house.” “[L]ists of ‘similarities,’” (citing cases) “like the one that plaintiff has provided, ‘are inherently subjective and unreliable, particularly where the list emphasizes random similarities scattered throughout the works’.”
In comparing characters, courts “consider the totality of their attributes and traits.” Thus, “[n]o character infringement claim can succeed unless [the] plaintiff’s original conception sufficiently developed the character, and [the] defendants have copied this development and not merely the broader outlines.’” Hogan v. DC Comics, 48 F. Supp. 2d 298, 310 (S.D.N.Y. 1999) (quoting Smith v. Weinstein, 578 F. Supp. 1297, 1303 (S.D.N.Y.), aff’d, 738 F.2d 419 (2d Cir. 1984)); see also Lewinson v. Henry Holt & Company, LLC., 659 F. Supp. 2d 547, 574 (“‘[T]he less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.’” (quoting Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (Hand, J.)). As a result, “basic character types” and “stock characters” are not copyrightable. Lewinson at 567-68, 574; Jones v. CBS, Inc., 733 F. Supp. 748, 753 (S.D.N.Y. 1990). Similarities among “less developed … characters” are understandable because they are essentially types: simply colors on the palette, not the painting. There are different ways in which characters, themes and scenes can be developed, so that in comparing one with the other, dissimilarities (age, gender, psychology, occupation) undercut infringement. “Copying which is infringement must be something ‘which ordinary observation would cause to be recognized as having been taken from’ the work of another.” Dymow v. Bolton, 11 F.2d 690, 692 (2nd Cir. 1926).