Law & Humanities Workshop Series
presents
Zahr Stauffer
University of Virginia Law School
Rethinking Protection for Literary Characters
in Intellectual Property Law
Tuesday, September 28, 2010
12:30 – 2:00
Solarium (Room FA2) - Falconer Hall
84 Queen’s Park
As a baseline matter, characters do not explicitly receive protection under the Copyright Act. However, under one of several tests, characters may and often do qualify for independent protection. Yet the tests for copyrightability are not especially coherent. They range from a requirement that characters be “fully delineated,” to powerful dicta suggesting that characters should “constitute the story being told” in order to qualify for copyright protection. Neither of these standards tracks literary theories of character or plot development. Worse still –from the law’s perspective one might interpret the mandate to delineate characters fully as importing a backdoor quality standard into copyright law, which strives to avoid evaluating works of art for their artistic merit. My goal in this project is to demonstrate the value of applying literary evidence to the legal muddle that has arisen in copyright protection for characters. A further aim of this project is to juxtapose legal theories of character protection under copyright with literary treatments of the agonistic relationship of characters to their surrounding content, and more specifically, to their authors. What does it mean for authors to invent, use, reuse, and lose control of, characters? What lessons can the law draw from literature’s manifestations of the anxiety of influence? I am imagining the phrase “anxiety of influence” here not only as Harold Bloom intended it the anxiety of authors wrestling with their forebears’ work in order to secure their own legacies but also as an anxiety mediated through characters, expressed symptomatically as authors wrestle with their own creations and the creations of others. Looking at literature of this kind illuminates the costs of copyright’s overprotection of first-generation authors. Ultimately, the project uses literary evidence to argue that the scope of protection for characters is too broad. Although the idea that characters should only be copyrightable independently if they “constitute the story being told” has been embraced, if at all, only in dictum and has been disfavored in recent case law, I argue that it aligns better with literary theories of and literary norms surrounding characters. It has the virtue of minimizing independent protection for characters, while providing a clearer legal standard than other possible tests.
A graduate of Columbia University School of Law, Zahr Stauffer teaches Law and Literature and Advertising Law at the Law School. Zahr briefly practiced in the corporate department at Ropes and Gray in Boston before joining the Law School in 2008. In law school, Zahr served as Articles Editor for the Columbia Journal of Law and the Arts, and was a Kent Scholar. Her note on the tensions between legal and literary concepts in intellectual property received the Andrew D. Fried prize. As a first-year, she was awarded the Young B. Smith prize for excellence in torts. Her research areas include law and literature, copyright, trademarks, postcolonialism, immigrant narratives, and Arab and African literature. Prior to law school, Zahr graduated magna cum laude and Phi Beta Kappa from Berkeley in 1996 with a bachelor's degree in Comparative Literature. She was awarded a Fulbright grant to Morocco in 1997. In 2003, Zahr earned her doctorate in Comparative Literature from Harvard University, where her dissertation focused on appropriations of Shakespeare by Arab authors. At Harvard, she won the university-wide Joseph R. Levenson Memorial Prize as a graduate student and the John Clive Teaching Prize as a lecturer in the History and Literature field.
This workshop is co-sponsored by the CILP Innovation Law & Policy Workshop Series.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
