Boilerplate Speaks!

In the lengthy Comment thread below Joe Miller’s post on Boilerplate, “Boilerplate” writes:

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.

If the URL behind the Comment is authentic, this is either Paul Guinan or Boilerplate himself, channeling its creator, and if so, I’m delighted to have the information. And thanks for reading and posting!

The question is whether the information changes anything.

The most generous reading of the Comment is that Boilerplate is, in fact, a highly creative work of authorship, and everyone — including Chris Elliott — either did know as much or should have. (Chris Elliott, then, turns out to be just as naive in real life as his on-screen persona.) All of my “cultural bait-and-switch” hand-wringing in the Comments is beside the point. Boilerplate his case by pointing out that some sentences of Elliott’s book are copied, apparently verbatim, from the Boilerplate graphic novel. That certainly makes things look worse for Elliott, and rightly so as an equitable matter (though I understood previously that the claim was infringement of the “character,” rather than infringement of the graphic novel). On this reading, Guinan has invoked a garden-variety copyright claim and is entitled either to what Elliott will give him voluntarily, or to what the courts will give him otherwise.

A less generous reading may be in order, however. Focus on the quotation from U.S. News: “Boilerplate works because of people’s gullibility.” If Guinan is resting his claim on the naivete and ignorance of the American public, he’s in good company. But my cultural bait-and-switch theory would stand. I don’t think that Boilerplate is entitled to the benefit of a gullible readership and the full force of copyright, too.

The bottom line is that copyright is a public institution. No author or creator gets a free ride simply by declaring, “I have made it,” whether that declaration comes via copyright notice, or disclaimer, or public acclaim for the creation. To paraphrase a movie quotation, the public has rights.

2 thoughts on “Boilerplate Speaks!

  1. Hi Mike:

    I’m a comic book artist who shares studio space with a
    number of cartoonists, including Paul Guinan. I can’t
    say for sure if that’s him you quoted, because he’s
    been insanely busy all week working at home, meeting
    his commercial art deadlines, dealing with
    “Boilergate” and being the Artist Guest of Honor at
    OryCon, a science fiction convention.

    First, I should note that I don’t speak for Paul in
    any way. I’m just another cartoonist who has been
    following the Boilerplate story for a while.

    That said, I think you’re staking far too much of your
    case on an utterly mistaken notion of Paul as the
    perpetrator of some sort of hoax. (I noticed that when
    you quoted the US News line, you inserted a period in
    the middle and truncated it to leave off the part
    mentioning Paul’s lack of guile. Why?) In any case, if it
    isn’t clear, let me make something explicit: the
    Boilerplate site was never designed to deceive anyone.
    It is not a prank. It’s a website for a comic book
    about a robot who was friends with Teddy Roosevelt.

    Take a look at the site: a talking robot soldier from
    the 19th century who fought up San Juan Hill, rode
    around with Pancho Villa in Mexico and helped rescue
    Shackleton in Antarctica. This is amusing
    science-fiction fantasy; it’s not a “bait and switch”
    hoax.

    Paul worked for years designing and building his
    Boilerplate model and creating the website and the
    comic book. Ask anyone who makes science fiction for a
    living- it takes serious effort to create a good,
    convincing world. Paul made that effort and clearly,
    he succeeded, because people get caught up in his
    story, which is obviously a fantasy.

    That should be admirable, but from this and your other
    posts, I’m getting the impression that you believe
    that because people have gotten caught up in the
    fantasy- because Paul did such a good job of telling
    his talking robot story – he’s actually forfeited any
    right to his characters. Would he really have a
    stronger claim of ownership if he’d just hacked it all
    out and done a shoddy, half-assed job? That’s a
    horrible message for the legal system to send to
    artists and storytellers.

    Or let’s look at it from the other side. Suppose
    someone out there thought (or claimed to think) that
    Star Wars was a documentary about events that really
    did take place “a long time ago.” Suppose this person
    actually sold a novel or made a movie featuring Ben
    Kenobi and his talking robot C3PO,(who looks just like
    the one in the movie.) If I understand the argument
    you’re making, this person would be within his rights
    to do so, because the public can’t be expected to make
    any sort of effort to distinguish between fact and
    fantasy.

    Finally, you might not be aware of the financial
    realities of comic book publishing. I’m not privy to
    the details of Paul’s financial situation, but
    generally speaking, a cartoonist who earns an annual
    income in the high four-figures working on a character
    that he owns is doing extraordinarily well. Licensing
    such characters for use in other media is often the
    only way for a cartoonist to make the sort of living a
    greeter at Wal-mart takes for granted. If Paul didn’t
    challenge Elliott’s appropriation of his characters,
    he wouldn’t just be letting that one use go, he’d also
    be jeopardizing any future licensing opportunities.
    Elliott would become his competition in the
    Boilerplate business. If Disney/Miramax (the publisher
    of Elliott’s book) wanted to make a Boilerplate movie,
    do you think they’d choose to license the character
    from Elliott or from Paul?

  2. I was actually trying to make a point about copyright law that is a bit broader than the Boilerplate example, though I think that the example highlights the point in a particularly provocative way.

    The point is this: Copyright law offers *limited* legal protection to authors and creators and comic book artists and science fiction/fantasy developers. That much is incontestable. The hard part is identifying what those limits are (fair use is one, of course, and first sale and the idea/expression distinction), and how those limits work. The source of those limits is the the reading and consuming and later-creating public. For example, the more “the public” has invested in a given creative work, then the stronger the public’s claim to limit the author’s rights — and, sometimes, the stronger the author’s claim to exclusivity and legal protection. I won’t belabor the doctrinal examples; the law here is pretty clear, even if its application often is not.

    “The public” invest in a work in a lot of different ways. One way is that the public may perceive a creative work in a certain way — as “foundational” or “factual” or “historical” rather than as specific or contemporary or fictional. Again, the law here is pretty clear, even if its application is not. Steve is right that weighing the public’s investment heavily in the Boilerplate case puts a lot of artists on the horns of a copyright dilemma (detailed, representational art doesn’t necessarily announce itself as “art”), and he (and I) aren’t the first people to point this out. Copyright lawyers are familiar with this problem from the Bridgeman v. Corel case, for example.

    I don’t have a solution to this problem. I merely note that it highlights some fundamental defects in our current system of copyright.

    Did Elliott claim that *he* created Boilerplate? I thought not. If he didn’t create the robot, how could he stick Disney with a licensing deal? Disney is bright enough, at least, not to pay royalties to anyone who asks for them.

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