Megan’s post about copyright and the muse reminded me to get back to this post that I started to draft a couple of days ago and never got back to because my computer crashed.
As I mentioned in my comment on Megan’s post I’ve been reading a lot lately about the act of creating literary works. A number of people have spoken about the creation of literary narratives in the context of Jung’s theory of the collective unconscious and Campbell’s theories of all stories being based on a given set of mythological or classical narratives. In short, if you subscribe to these theories, you accept that human literary narratives come in a relatively small group of basic structures and what changes from culture to culture and author to author is the expression of the tale. Thus, one would have to be careful in copyright terms not to protect literary works at too high a level of abstraction for fear of really cutting off major routes of creativity following a particular narrative path.
Over the weekend I was reading a book by Bailey on constructing narratives and his suggestion about what differentiates one narrative from another within a particular genre or story structure is basically the characters, rather than the plotlines. This got me to wondering whether copyright law should focus more on protecting characters with respect to literary works and less on protecting stories and plotlines. This would certainly make authors/publishers happy when they are trying to stamp out derivative works – which may or may not be a good thing depending on your perspective. (As readers of my work will know I kind of like promoting things like fan fiction and fan mashups although I’m also sympathetic to author and publisher arguments about avoiding unjust enrichment in a commercial sense based on others’ characters and situations. It’s all a – very difficult – question of balance as we all know.)
I remember some years ago when I studied copyright in the UK and Europe, there was much less readiness in those countries to protect characters via copyright than there seems to have been in the U.S. at the same time. I’m wondering if people have thoughts on the copyrighting of characters perhaps as an alternative to focusing on storylines and given levels of abstraction with respect to the substantial similarity question for infringement purposes.
Obviously copyright is supposed to only protect the expression of a given storyline in any event but from time to time courts take things to higher levels of abstraction when assessing substantial similarity questions. Does focusing rather on protecting characters create a better balance or not? And does this approach argue in favor of sector-specific copyright principles? Obviously you can only protect characters in literary and dramatic works ie works that actually HAVE characters (probably also including video games). And what of Second Life, avatars etc? Thoughts, Prof Boyden??