When I recently spoke to representatives at Actors' Equity about pressing legal issues for its members, the first issue, surprisingly enough, involved the production of one-person shows.
Nothing illegal about one-person shows, mind you. Rather, actors engaged in this sort of endeavor are particularly concerned about whether the characters they create are copyrightable. In other words, if you create a brilliant, original character in a one-person show, can John Leguizamo then appropriate that character in his latest one-person show (not that Leguizamo does that sort of thing)?
First, a very quick overview of copyright law: Copyright is the variety of "exclusive" rights that give authors of original literary, dramatic, and artistic works the sole right to authorize or prohibit the commercial or noncommercial use of their work. Copyright protection lasts for the life of the individual author plus 50 years. One of the central tenets of copyright law is that the protection does not extend to "ideas" contained in a work. Another central tenet is that protection does not extend to "facts," though the creative way those facts may be assembled is copyrightable.
The issue of whether characters in a play are copyrightable tends to involve whether the character in question is original or not. A generic characterization that has some rather stock particulars, such as the prostitute with a heart of gold, should not be deemed worthy of copyright protection. As stated by the legendary (and wonderfully named) judge, Learned Hand (I know, it sounds like a stage name):
"If 'Twelfth Night' were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters, he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's 'ideas' in the play, as little capable of monopoly as Einstein's Doctrine of Relativity or Darwin's Origin of Species. 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."
In determining which characters are original and which are not, two salient questions are usually posed. First, as posed by Learned Hand, one must ask if the original author presented sufficient detail in his or her character to command protection. Second, one must ask whether the alleged infringer copied such detail, rather than merely using the character as a broad outline. Along these lines, it should be noted that one can base a character on another character as long as the second character is sufficiently unique.
This two-pronged test is a rather hard standard for litigants to meet. Even where the second character is remarkably similar to the original, some courts have rejected copyright claims. An old appellate case out of California, in fact, held that the Dashiell Hammett character Sam Spade could not be protected, though this case has been criticized for its narrow scope. More recently, the "erudite male abolitionist who provides a modern voice" in the film "Amistad" was not found to be a copyright infringement.
A character most likely to receive protection tends to be one based on cartoons or other graphic representations. Mickey Mouse and other Disney characters have therefore been found to be copyrightable. As the Northern District of California stated in 1972:
"The plot of the piece did not only center around the character, but is quite subordinated to the character's role [and]…the principal appeal of each of the plaintiff's works to the primary audience of children for which they were intended lies with the character and nothing else."
Along the same lines, Superman has implicitly been found to be copyrightable, as has been Tarzan, Jane, Boy, Cheeta, Godzilla, and Hopalong Cassidy.
What if someone steals your character's name? Or to put it more clearly, what if some aspiring playwright creates a character whose name is Blanche DuBois? It has been held that the copying of a character's name is not in itself decisive, though it can be a factor in determining if the character is sufficiently appropriated. Thus, if the second Blanche is seductive, lives in New Orleans, and has a sister named Stella, a copyright claim may well lie by the Tennessee Williams estate. However, if the second Blanche happens to be a Manhattan yuppie who works at a public relations firm and spends a lot of time riding horses in the Hamptons, such a claim would certainly not lie.
What if someone steals a "joke" or "gag" that is inherently part of your character's makeup? There is very little authority on the issue, but commentators have speculated that such a claim might well lie, assuming originality of the joke or gag (which is likely doubtful). The problem in this area might well be that the joke or gag would be considered an "idea" that is not copyrightable. A 1970 case involving this issue dismissed the copyright claim because the jokes involved "stock situations." However, as to "stage business," the legislative history of an earlier version of the current act has indicated that a claim may lie. The House Report indicated, in 1966, that "the work of stage directors…to the extent these works constitute 'original works of authorship' " are copyrightable.
Interestingly enough, makeup designs have been found to be copyrightable in one instance. In a recent case coming out of the Southern District of New York, parties agreed that the seven layers of makeup required to make up the cats in "Cats" are copyrightable.
Please note that, in this realm, one should always be aware of other areas of law, including trademark, contract, unfair competition and, possibly right-of-privacy theories. As with so many issues in this field, if you have a question or any nagging doubts, run it past a lawyer.