Is the Law of Character Copyright in Chaos?
Will the Supreme Court turn Disney’s Inside Out upside down by granting a petition for certiorari filed by the creator of The Moodsters? Two articles in the National Law Review outline the controversy between Disney and Denise Daniels, an expert on children’s emotional intelligence. In short, Daniels and her company, The Moodsters Company, sued Disney claiming Inside Out, portraying five personified emotions battling for the mind of a young girl, infringed Daniels’ alleged copyright in The Moodsters, five characters color-coded to emotions. But both the trial court and the Ninth Circuit applied the “sufficient delineation” standard for copyrightability of characters and concluded that Daniels’ Moodsters enjoyed no copyright protection. Daniels v. Walt Disney Co., No. 18-55635, 2020 U.S. App. LEXIS 7481 (9th Cir. Mar. 10, 2020). In August, Daniels’ company (hereinafter “Daniels”) filed a Petition for Writ of Certiorari asking the US Supreme Court to settle what she characterizes as “uncertainty” in the law of character copyrights. (Moodsters Co. v. Walt Disney Co., Petition for Writ of Certiorari No. 20-132 (Aug. 3, 2020)). In part, Daniels argues that the standard for copyrightabilty of characters is fractured. Has Daniels conjured up a chimera, or have the circuit courts indeed created mayhem in the standard for character copyright?
To understand the controversy, note the precise question at issue. Daniels claims a copyright in the characters she created—not the works featuring the characters. In other words, she isn’t claiming that Inside Out infringed her copyright in her 2005 pitchbook for a proposed television program, known as “The Moodsters Bible,” or her 2007 pilot television episode. Instead, she is claiming Disney has infringed her alleged copyright in The Moodsters characters themselves, which she defines as “five gendered anthropomorphic animated characters each paired with a core body color that live[ ] together ‘inside a child,’ and which each include[ ] many other nuanced expressions.” (Petition for Cert. at 7).
But the copyright statute doesn’t specifically include characters as eligible for copyright. Copyright protection, according to statute, subsists in “original works of authorship fixed in a tangible medium of expression.” “Works of authorship” include eight specified categories of work including pantomimes and pictorial works. 17 U.S.C. § 102(a). Nevertheless, courts have extended copyright protection to comic book characters, characters in a television series, and motion picture characters. Generally, in order to meet the Ninth Circuit’s standard, a character must (1) have “physical as well as conceptual qualities,” (2) be “sufficiently delineated to be recognizable as the same character whenever it appears” with “consistent identifiable character trains and attributes” and (3) be “especially distinctive” and “contain some unique elements of expression.” Thus, Godzilla, James Bond, Mickey Mouse, and the Batmobile have all been afforded copyright protection.
So why not afford The Moodsters copyright protection? According to both the trial court and the Ninth Circuit, Daniels’ characters lack sufficient delineation to enjoy copyright protection. Looking at The Moodsters from the time of their inception through the time of Disney’s movie, the courts noted that other than being humanoid and being a color associated with a mood, The Moodsters lack definite traits, names, or appearance. Daniels claimed infringement of five generalized characters, so generalized that each amounted to little more than a biped color-emotion combination.
To entice the Supreme Court to hear the case, Daniels has opted for the “circuit-split” strategy, a split she failed to reference in her original appeal to the Ninth Circuit or in seeking a rehearing en banc. According to Daniels, the law of character copyrights is “in chaos.” After initially waiving its opportunity to respond to Daniels’ Petition, Disney filed a response in November at the Court’s request, arguing that the standard for character copyright has been in place for 90 years, that there is no circuit split, and that Daniels seeks to protect general character concepts which are not independently entitled to copyright protection.
The controversy in Moodsters Co. v. Walt Disney Co. raises a long-standing copyright quandary. While copyright extends to the expression of ideas, it has never extended to the ideas themselves—a distinction admittedly sometimes difficult to make.
Consider the courts’ treatment of the character copyright issue. In a 1930 opinion written by Judge Learned Hand, Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), the Second Circuit denied copyright protection for several characters from a play. While the opinion conceded that a playwright’s copyright cannot be limited literally to the text, it noted that a playwright’s copyright in her work does not extend to cover everything that might be drawn from her play. Judge Hand acknowledged that plots and even characters can theoretically be protected by copyright. But he explained that upon any work a number of patterns of increasing generality can be drawn as more and more of the specifics are left out. “[T]here is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’.” Nichols at 121. Property rights do not extend that far.
The crux of the problem lies in defining the boundary between protected and unprotected property. Judge Hand stated the problem as follows:
[The play’s] content went to some extent into the public domain. We have to decide how much, and while we are as aware as any one that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer in nearly all cases.
Nichols at 122.
In the context of this analysis, Judge Hand made his oft-referenced declaration that if Shakespeare’s Twelfth Night were copyrighted, “a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe.” But it would not be enough if the accused infringer cast a “riotous knight” or a “foppish steward” because these would be no more than Shakespeare’s ideas. In sum, he stated, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” Nichols at 121. This has become known as the “sufficient-delineation” standard.
Other Circuits have defined their standard for copyrightability of characters using terms different from those chosen by Judge Hand in 1930, but a comparison of the various Circuit Court opinions reveals more consistency than “chaos.” Citing Nichols, the Seventh Circuit has explained that copyright protects only a distinctive character with “a specific name and a specific appearance.” Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004). The Eighth Circuit requires a copyrightable character to display “consistent, widely identifiably visual characteristics” and states that other distinctive nonvisual characteristics may impact the analysis. Warner Bros. Entertainment v. X One X Productions, 644 F.3d 584 (8th Cir. 2011). The Ninth Circuit employed a sufficient-delineation standard in Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (affirming copyright protection for 21 Disney characters including Mickey Mouse), further defined the standard in DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), and applied that standard in this case as outlined above.
This relative consistency between the Circuits demands that Daniels recast the “circuit-split” argument she initially forecasts. The standard for copyrightability for fictional characters, says Daniels, departs from the “originality” standard endorsed by the Supreme Court in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). In Feist, the Supreme Court held that a phone company’s copyright in its directory did not extend to the names, towns, and telephone numbers alphabetically listed in the directory. Originality, the Court held, remains the “sine qua non” of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).
Read in full context, however, Feist seems unlikely to make Daniels’ case. The Feist Court concluded that copyright in a factual compilation exists, but it is “thin,” extending only to any original selection and arrangement of the facts. Thus, a subsequent compiler may use the facts contained in the copyrighted publication to aid in preparing a competing work, so long as the competing work does not mimic that selection and arrangement of the facts. This remains true even if the author is the first to discover the facts or propose the ideas. Feist at 349. While this may seem unfair, the Court acknowledges, it accords with the objective of copyright (as expressed in the Constitution) which is not to reward the labor of creators but to promote the progress of science and useful arts. “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Feist at 349-350.
Applying Feist, then, would bring us back to the question that Judge Hand attended to in Nichols. How far does Daniels’ copyright in her works extend? Wouldn’t any copyright in her characters, like the copyright in Feist, be described as “thin” at best? The Moodsters and Inside Out’s characters bear obvious distinctions visually. Thus, in order for the copyright infringement net to capture Inside Out’s characters, the Court would have to conclude that Daniels’ copyright extended to, for example, a sad blue biped or a red angry biped. Does this not border on the prohibited copyright of ideas or generalized concepts?
Keeping in mind that intellectual property rights give their holders a time-limited monopoly, the sufficient-delineation standard should be uncontroversial. Whether it’s patents, trademarks or copyrights, all intellectual property rights remove from the public domain, for example, a device, method, symbol, design, word, or artistic creation so that only the creator (or a licensee) can earn recognition or financial benefit from it for at least some period of time. Generally speaking, intellectual property laws therefore require that what belongs to the intellectual property holder be clearly defined. Patent statutes require the patent claims to specifically delineate the scope of the patent holder’s property. Trademark laws preclude the registration of generic or descriptive marks. And while the copyright holder’s rights extend beyond the literal text, they have never extended to generalized concepts or ideas expressed in the text. This concept is codified in 17 USC § 102(b).
Perhaps to some extent the standard for copyright of characters—while not in “chaos”—remains unsettled. Perhaps the Court will grant the Petition to address the issue (or another raised by the Petition). But The Moodsters’ case seems unlikely to upend the foundational idea/expression dichotomy. Consequently, at the end of the day, the result for The Moodsters will likely remain unchanged.