Did you know that separate from a book, play or movie characters in those creative pieces can also receive copyright protection? It’s true. One of the early cases defining this idea is Nichols v. Universal Pictures Corp in 1930. Judge Learned Hand recognized that characters could receive copyright protection; however, he did so with something for all creators of works to keep in mind. He stated,
“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”
This got me thinking about Halloween and whether horror film monsters such as Frankenstein, and Dracula or more generic monsters like mummies, vampires and zombies were subject to copyright protection. A quick search for Halloween monsters reveal that there are a group of film monsters known as the “Universal Monsters” who are subject to copyright protection. Those are the monsters that were in films made by Universal Pictures in the ’30s, ’40s and ’50s. Those monsters include Frankenstein, Dracula, the Mummy, and the Phantom of the Opera – just to name a few. In fact, I found several websites dedicated to the Universal Monsters. Who knew there was such a following? Here are some sites I particularly liked – Monstrous Beginnings and Universal Monster Army Forum.
In a blog post dedicated to Frankenstein titled How Universal Re-Copyrighted Frankenstein’s Monster, the writer points out how the actual “look” of Frankenstein was developed by Universal Pictures. Author Mary Shelley wrote Frankenstein back in 1818. I know what you’re thinking – how can a book written that long ago still have a character that is subject to copyright protection? The answer, as explained in the post, is because in the book there was very little visual description of the monster. The flat head, green face and bolts in the neck are elements Universal Pictures added when it created the movie. Because Universal gave life and visual face to the monster, those added creative elements to a work that was long in the public domain are now subject to copyright protection. I encourage you to read the full post HERE.
A similar type dispute is developing over the literary character Sherlock Holmes and his dear Watson. A lawsuit was brought earlier this year in an attempt to say that copyright no longer exists in elements of the books that were first published in 1887. The Doyle estate, which licenses and makes money off of the Sherlock Holmes use, argues in their response that the characters of Holmes and Watson were not completely and fully created pre-1923. Said another way, the characters continued to evolve and grow as characters in publications after 1923. Thus, the characters still remain subject to copyright protection, licensing and money for the Doyle estate. You can read the full response by visiting this LINK.
If the Sherlock Holmes dispute is viewed in light of the protection afforded Universal Pictures over Frankenstein, then I could see how the Doyle estate might have a strong argument. If utilized, an author could, in theory, continually extend the copyright in their characters by way of manipulation. The author could produce new books containing the characters in their original publication and by adding new characteristics with sufficient descriptive detail.
While I truly value copyright, it is hard for me to believe that a scenario as I described above is in the spirit of the copyright statute. There were limits on the lifetime of a copyright for very good reasons. I’m afraid that should certain literary characters be granted the protection that the Doyle estate is arguing for it might create a new kind of monster – one that haunts for eternity, is constantly raised from the dead and never gets to visit the land of the public domain. I can’t really imagine anything scarier. Can you?
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier.