Boilerplate is Copyrightable

BoilerplateWell, no, not that boilerplate. This Boilerplate. According to today’s Times, Chris Elliott has agreed to sttle a claim brought by the creator of the fictitious 19th century robot “Boilerplate,” which Elliott used as a character in his forthcoming novel:

Mr. Guinan said on Saturday that Mr. Elliott had agreed to pay him a percentage of his earnings from the book and would credit Mr. Guinan’s creation in future editions. The two negotiated a settlement themselves, both said, sharing a desire to keep lawyers out of it. They were both surprised, they said, that at no point in the publication process did anyone at Miramax raise questions about the legal standing of Boilerplate.

Of course they were surprised. Any competent lawyer would be surprised to learn that authors of fantasy and science fiction have to clear rights to machines and other inanimate objects. To all outward appearances, and at least judging from the Boilerplate website, Boilerplate is offered to the world as a real robot. As a robot, Boilerplate is obviously patentable subject matter, not copyrightable subject matter. Since its creator has no patent rights that I’m aware of, Chris Elliott would have been well-advised (had he been advised at all, which apparently he was not) to thumb his nose at Boilerplate’s very inventive creator.

Seriously: Why isn’t the claim governed by A. A. Hoehling v. Universal City Studios (618 F.2d 972 (2d Cir. 1980))? If the author of the historical artifact presents it to the world as “real” or “true,” then the resulting IP right should be narrow — to nonexistent.

3 thoughts on “Boilerplate is Copyrightable

  1. Of fact and fiction.

    The court in A. A. Hoehling v. Universal City Studios (618 F.2d 972 (2d Cir. 1980) articulated the longstanding notion that the scope of a copyright granted in a historical account encompasses only the author’s original expression of particular facts and theories which are in the public domain.

    In other words, historical accounts, like other arrangements of information found in the public domain (e.g. phone numbers, etc.) are granted razor thin copyright protection.

    Specifically, this case was concerned with various accounts and theories surrounding the destruction of the Hindenburg.

    Unless there exists some incredible evidence to the contrary (e.g. a smoking gun something along the lines of backstage footage of Neil Armstrong walking off of the moon and into his dressing room in Studio 51), it is safe to assume that the Hindiburg was, in fact, destroyed.

    Therein lies the difference.

    Because Boilerplate never actually existed and was merely a fictional figment of the imagination of its author, he is as “copyrightable” as Huck Finn.

    Further, if the rational forwarded above is correct, the whole genre of historical fiction would be deemed uncopyrightable subject matter.

    In summary, just because the author portrays a person or an event as “history” doesn’t make it history.

  2. Chris,
    Not to get all post-modern and everything, but is “history” (or fiction) what an author says it is, or what the public says it is? Surely the reaction of the reading public is relevant to the scope of an author’s rights.
    Even conceding that Boilerplate is copyrightable subject matter, I’d grant Guinan at best a thin copyright: protection from literal appropriation of the image of this particular character. And even then . . .
    In the current New Yorker, there’s a cartoon that shows a Maurice Sendak “Where the Wild Things Are” character in bed with a woman. The cutline reads, “Let’s face it — this was never going to work. You’re a beloved children’s book character, and I’m a lesbian.” Is Sendak’s character copyrighted? Absolutely. Is this copyright infringement? Absolutely not.
    Mike

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