Beyond Copyright: Applying a Radical Idea-Expression Dichotomy to the Ownership of Fictional Characters

Tze Ping Lim · 21 Vand. J. Ent. & Tech. 95

Abstract

Copyright protection for fictional characters in the United States is expanding on an uncertain and incoherent basis. With the event of the case Towle v. DC Comics, courts have now applied three different tests to discern a character’s copyrightability. Towle was a significant decision because it was the first time a US court had held that a car (the Batmobile) was a copyrightable character. Although courts have utilized the ideas-expression dichotomy to differentiate unprotectable character ‘ideas’ from protectable character ‘expressions’, the dichotomy is unlikely to alleviate the law’s uncertainty and incoherence. Both the US ideas-expression dichotomy and character copyrightability doctrines have been highly influenced by the case of Nichols v. Universal Pictures. In this case, Judge Learned Hand espoused an ideas-expression dichotomy that expanded copyright to cover more than the literal words of a text, and so could potentially cover a text’s characters. Nevertheless, Learned Hand admitted that this dichotomy was vague and arbitrary.

This Article combines legal and philosophical perspectives to shed light on the problems of uncertainty and incoherence in the law of fictional character ownership. In 1793, the German philosopher Johann Gottlieb Fichte published a radical ideas-expression dichotomy, wherein copyright was restricted to the literal words of a text. Under a Fichtean perspective, fictional characters would be ideas that were beyond copyright, residing perpetually in the public domain. Although Fichte’s dichotomy was based upon a natural law conception of copyright, a
natural law conception of copyright can arguably further utilitarian goals. This is illustrated by the case study of Friedrich Nicolai’s parody of Johann Wolfgang Goethe’s book The Sorrows of Young Werther. This Article proposes that adopting a Fichtean perspective on fictional character ownership can enrich our understanding of how fictional characters can be owned in a copyright sense. If judges adopt language that more closely reflects Fichte’s philosophy, a more detailed analysis of the facts in character copyrightability cases will likely ensue.