This reminds of how class discussion goes sometimes. I may lead off with what I intend to be a silly example and it leads to one of the more interesting class discussions.

Now that I’ve been forced to put on my thinking cap, I think that we don’t need to go down the fair use or implied license route or even bother much with substantial similarity, idea/expression distinctions, or scenes a faire or merger. Sometimes copyright law gives us too many traditional tools and leaves us short of the novel tool we really need. (Recall Boudin’s concurrence in Lotus v. Borland.) Guinan made a deliberate effort to put one over on a gullible public. It’s a witty, subtle — even elegant — parody, which is praiseworthy and entitled to no less encouragement via law than any other similarly subtle or elegant creative work. Does allowing Elliott free use of Boilerplate disrupt that encouragement in any substantial way, and in any event to a greater degree than the benefit offered by Elliott’s own work? I have to think: No. But it’s more than a cost/benefit analysis. Your GPL analogy comes closest to where this is going. Guinan did more than grant an implied license to would-be copyists; by placing Boilerplate-as-history at the disposal of the public, he positively invited future historians, archivists, biographers, and storytellers (thus, Elliott) to work Boilerplate into their accounts. He *wanted* everyone to believe, at least initially, that Boilerplate was real. He has no right to pop up, after people have relied on that premise, and declare that Boilerplate is a fraud after all and by the way, where’s my money?

This might be fair-use-as-social-practice, or it might be scenes a faire (also a kind of social practice), or it might be thin copyright or no substantial similarity, and so on. The doctrinal point is less important in my mind than the notion that Guinan is using copyright to pull a kind of cultural bait and switch, and the fact that he is obviously a remarkable artist makes him less sympathetic, in my mind, rather than more.

For both fact patterns (Boilerplate and Orgasmatron), neither the ideas nor the names themselves are or should be protected by copyright, but the trick, as always, is figuring out the details–what else was actually (or hypothetically) copied. “We need more facts!” as the students like to say.

From the newspaper article, I could not really tell what exactly Chris Elliot copied. He clearly accessed Guinan’s work and he clearly borrowed some*thing*–but what exactly? The name “Boilerplate” and the idea of such a robot in the time period? or was more descriptive detail about the robot and the context created by Guinan borrowed? I couldn’t tell, but as your posts demonstrate, it matters. Similarly, with respect to the orgasmatron, it seems to me that the details of your use matter. I do not think the idea for the device itself nor the name alone do or should receive copyright protection–despite any creativity, one of the many leaks/holes in copyright (idea/expression, merger, de minimis, fair use) should apply, as your posts suggest.

And as often is the case in copyright, when the details matter (which they often do), prudence leads to licenses because the litigation costs are simply not worth the trouble.

My difficulty would be with limiting the copyright in these sorts of works in a way markedly different from the limits we place on copyright in all creative works.

Your analysis here, regarding a creator’s effort to leverage a new work’s appeal on the pre-existing body of creative work in the field, strikes me as spot on. And isn’t it the way we would limit the reach of an author’s claim in all contexts, with all sorts of works? To separate the new creative expression from that which others had authored, we would inquire about the narrative devices you mention. What are the stock characters, the routine plots, the conventional tropes? What are the facts and ideas, as opposed to the expression of those facts or ideas?

I agree, too, that Chris Elliott doesn’t owe Paul Guinan anything if he hasn’t used any of Guinan’s creative expression. The fact (if it is a fact) that Elliott isn’t using any of the visual images makes Guinan’s claim much less compelling. So, you rightly force us to the heart of it: Can Guinan claim copyright in a named and described fictional character alone? The cases blow hot and cold on this question, I think. Perhaps a license is prudent on the ground that it simply avoids the litigation uncertainty about the copyrightability of a fictional character (apart from any other expression of the character).

As for the orgasmatron hypothetical, my short answer is: maybe. Here’s what I think is tough about the question. On the one hand, there’s a case to be made that the device is part of stock of such items (including items like soma in Huxley’s Brave New World). And perhaps there’s a merger argument: how else to convey that the device produces orgasm-level pleasure, than to call it something that includes the word “orgasm”? On the other hand, the use of the very same name for the device, rather than a different name you coin yourself, does seem to nip a bit of Allen’s creative expression. Perhaps the best answer is the de minimis defense?

Why does limiting the scope of the copyright in these sorts of works (highly persuasive but parodic or satirical histories) work a “unique form of forfeiture”? The very point of the artist is to to insinuate the work into the narrative of some relevant history (documentary film, metal bands, Victoriana, dog shows, etc.), incorporating — if not appropriating — the various, highly specific and often creative narrative devices that give meaning to both the narrative and the new work. It seems highly unfair, then, for the same author to turn around and claim the (copy)right to interrupt the further evolution of that very narrative on the ground that this particular interpretive effort was “fiction” rather than “fact.” (Thus my invocation of Hoehling. I might instead have invoked the “sauce for the goose is sauce for the gander” principle of Hustler v. Moral Majority.) I have no problem with Paul Guinan pursuing a copyist who merely reproduces his images, websites, and graphic novels. Chris Elliott, however, used Boilerplate as a character in a different setting and in a different literary form.

How about this hypothetical: Suppose I write a work of science fiction that uses, as a character, Woody Allen’s Orgasmatron. I use no other features of Sleeper. Have I infringed a copyright?