Mike’s take on the flap between comedian-turned-novelist Chris Elliott and graphic novelist Paul Guinan confuses me a bit, and interests me a lot.
I agree that a novelist does not need to get an inventor’s permission to write about a publicly known machine. But is that what happened here? As I read the Times story, Elliott (or his aide) failed to see what I think is reasonably clear from the website about Boilerplate … namely, that it is fantasy creation, not a factual account of historical events. (It seems I disagree with Mike on this, so we would want to factor into the analysis that one risk of making a spoof is that some people take it to be true.)
Taken to an extreme, Mike’s analysis suggests tough sledding for a copyright claim in Woody Allen’s Zelig, and Christopher Guest’s This Is Spinal Tap, Waiting for Guffman, and Best in Show. And thereby hangs a tale …
First, I don’t think we want to reduce authors’ incentives to write spoofs (or produce brilliantly funny mockumentaries), relative to other types of expressive works, by subjecting the former to a unique form of forfeiture. (The forfeiture argument might run something like, “If it isn’t unmistakably clear from the face of the work itself that the work is fanciful rather than historical, the author can’t assert a copyright claim against another who mistakes the work for history and creates another expressive work incorporating expression from the first work.”) After all, spoofs and mockumentaries are precisely the sorts of fanciful works that the copyright incentive most strongly aims to create. (Helping to explain, for example, the favorable fair use treatment given to parody works in the Supreme Court’s Acuff-Rose case.) It strikes me as imprudent to force spoof-creators to make their works less powerful (and less funny) by demanding a disclaimer on the face of the work (e.g., “THIS IS JUST A SPOOF!”), on pain of obtaining a less clearly enforceable (and thus less valuable) form of copyright protection.
Second, I don’t think the Second Circuit’s decision in the Hoehling case is to the contrary. Indeed, it doesn’t even strike me as particularly relevant. In that case, plaintiff Hoehling had written an historical account of the Hindenburg disaster. He was trying to write an accurate history, not a spoof. He ended the book with a chapter in which he presented his own theory about what caused the Hindenburg’s fiery destruction. His theory, based on factual support he adduced in the book, was that a saboteur on board, Eric Spehl (who died in the disaster), had destroyed the zeppelin in an effort to show up the Nazi regime as weak. Hoehling sued Universal City Studios when it made a movie about the Hindenburg disaster that included a saboteur-on-board story line closely tracking Hoehling’s fact-based historical theory. The Second Circuit denied Hoehling’s claim to a copyright interest in the historical facts and the saboteur theory they supported, apart from Hoehling’s specific creative expression in his own book (which, the court concluded, had not been copied). According to the court in Hoehling, “To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots.”
Fast forward to Paul Guinan’s fanciful creation, the Boilerplate site. His site does, it’s true, trade on the visual and verbal tropes of somewhat sensationalized pop history. And that’s part of what makes it enjoyable. It also may fool some viewers. But once a viewer (like Chris Elliott) accepts that he made a mistake, and that Guinan’s work is fanciful, why shouldn’t he license the use of Guinan’s creative expression in his own, different work? Put another way, why should a lawyer tell Elliott not to license it?
In part I was trying to be clever, rather than clear. Obviously I was neither!
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?
Mike,
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?
We’re on the same page. I was hoping, though, that you would bite on one additional point, which is my implicit claim that Boilerplate isn’t a character at all, but (like the Orgasmatron) a mere object. (In fact, you’re right that the Orgasmatron hypo is complicated by use of the name. Suppose that in my sci fi novel, I include the device but gave it a new name. Lawful?) Objects are copyrightable, but only up to a very limited point. Names aside, it seems to me that using a copyrightable object as part of a literary work would almost inevitably fail to constitute an infringing use of the copyrightable elements of the thing. So Guinan’s claim seems, to me, to rest on the proposition that Boilerplate is a character, rather than an object. At this point I have to confess that I’ve only skimmed through the pages on Guinan’s site. My reaction so far, however, has been that the evidence is equivocal — Boilerplate seems to be equal parts man and machine, or (copyrightable) character and (uncopyrightable, but arguably patentable) thing. Do ties of this sort go to the public, or to the author?
Now, that last bit’s a softball. You know what I think: ties (should) go to the public, of course!
Oh, the sifting and line drawing of copyright law – – isn’t it great?
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.
Mike, your original post and comment above reminded me of your work on fair use and your argument that fair use does and should continue to take into account social practices. But, to be honest, I couldn’t quite make the connection completely. Were you pushing in that direction? E.g., regarding Guinan’s claim, could you elaborate on your concerns about fairness? should Elliot’s use be fair because on an implied license-type argument? because of a GPL-like commitment on Guinan’s part? because of the social context or relevant community practices?
Really, I was mostly (initially) having a bit of fun. The notion that a robot could be copyrightable struck me as just bizarre. But then Joe got all serious on me.
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.
Sorry I got all serious. But not sorry that it prompted Mike to set out a quite interesting, new blend of equity and incentives-based analysis. The notion of cultural bait-and-switch, which captures well my own reaction to many of the sillier claims of trademark owners, is something I will think more about in the copyright context too …
I agree with Joe. Well worth it! Mike’s analysis is exactly what I had hoped for and was inching towards when I read his previous posts.
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.
Some info for your discussions: Prior to the writing of “Shroud of the Thwacker”, the Boilerplate site had been repeatedly described by mainstream press as a comedic faux-history. A U.S. News & World Report reporter said “Boilerplate works because of people’s gullibility rather than Guinan’s guile”. Every page had (and still has) a copyright and trademark notice. There were (and are) several pages devoted to disclaimers. A graphic novel “Heartbreakers Meet Boilerplate,” featuring Boilerplate, was published in July. In “Shroud of the Thwacker” Boilerplate and his equally fictitious inventor Proffessor Archibald Campion play pivotal roles in the plot and resolution, and there are multiple drawings of Boilerplate. The book also contains lines of text that are worded the same as lines from the Boilerplate stories.
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