Law & Humanities
Innovation Law & Policy Workshop Series
Zahr Stauffer
University of Virginia Law School
Rethinking Protection for Literary Characters
in Intellectual Property Law
Date: Tuesday, September 28, 2010
Time: 12:30 p.m. – 2:00 p.m.
Place: Solarium 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 University of
Virginia 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.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
