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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.