IP Lawyers are Collateral Damage When Mary Poppins Battles He-Who-Shall-Not-Be-Named at London’s Olympic Games

Nothing (except, perhaps, the ice-skating scenes in Blades of Glory) rivals the impressive pageantry of the Olympic Games’ opening ceremony.  Of course, these days, opening ceremonies have gotten rather extreme.  Sometimes I feel like I’m watching an avant-garde Broadway performance directed by the love child of Mia Michaels and Michael Bay — a flamboyantly artistic pyromaniac who has spent every single day of the last 25 years sequestered inside a giant kaleidoscope doing blow, studying Russian ballet, and watching nothing but the opening scene from The Lion King (even though The Lion King came out 18 years ago).

If you can’t relate to my sentiment, consider some of the bizarrerie of the opening ceremonies from the last several decades:  giant eggs opening to flood balloon doves into the sky; a silvery entanglement of human bodies in the shape of a ball with red spikes sticking out; giant flying pink jellyfish; a rocketeer flying over a field of people holding up giant white and silver balloons; 2,008 Fou drummers using LED-embedded Fou drums and glowing drumsticks; javelin wielding centaurs; and a of course, a gigantic luminescent polar bear (thanks, Canada).

So how does Danny Boyle, the artistic director for the London Olympics 2012 opening ceremony, top all that?  [SPOILER ALERT]

Word on the street is that Boyle’s climactic sequence involves a 40-foot Voldemort who will rise out of a bed in the center of Olympic Stadium, scaring off classic literary characters in British history such as Alice from Alice in Wonderland, Captain Hook, and Cruella De Vil, before doing battle with 30 different actresses playing Mary Poppins, all of whom will descend from the roof of the stadium on wires and float to the ground using opened umbrellas to banish the dark lord and his dementor army (because everyone knows that a spoonful of sugar helps the Dark Lord go down).  Boom shakalaka!

Somewhere Mia Michaels and Michael Bay’s hypothetical love child is clapping with the enthusiasm of Dr. Strangeglove’s uncontrollable hand.  And a few IP lawyers’ heads are exploding from worry over this character licensing nightmare.

Let’s find out why.

Copyrights and Fictional Characters

Fictional characters can be protected by copyright law.  Sometimes.

A literary character can be said to achieve its own sphere of protection only if the character is sufficiently delineated.  (Some courts also consider whether the character is so distinctive and central to the work from which he or she is drawn that the character essentially is “the story being told.”)  This legal principle was most famously applied when a federal court in California concluded that James Bond, as a character, was copyrightable independently of the books and movies in which he appeared — and that Honda infringed on that copyright by running ads for its (short-lived) del Sol convertible featuring a debonair super spy, his gorgeous gal, his super cool gadgets, and a grotesque and menacing villain.

So, for example, anyone is free to create a “dark lord” villain who will stop at nothing to kill the protagonist and who commits such terrible atrocities that common people fear to speak his name.  Characters like Sauron, Thulsa Doom, Shai’tan, and Voldemort are all very much of the same trope (and all could use a regular dose of Prozac).  But if your “dark lord” villain can only be defeated by a teenage wizard named Harry with a lightning bolt scar on his forehead, or by dropping a magical gold ring that everybody joneses for into a fiery volcano called Orodruin in Mordor, you (a) should probably consider enrolling in creative writing classes; and (b) have probably committed copyright infringement, because you have copied aspects of Sauron and Voldemort that are very specific to their respective authors’ expressions of those characters in the Lord of the Rings and Harry Potter books.

Because they feature more distinct characteristics that have been fixed in form, visually-depicted characters achieve copyright protection more easily.  And visual characters that are based on literary characters qualify for separate “derivative” copyright protection from the source characters.  In particular, Warner Brothers’ noseless, blotchy-skinned, vaguely reptilian, thoroughly Ralph Fiennes-ian depiction of Voldemort is subject to copyright protection separate and apart from Rowling’s literary version of the character — and the copyrights would be held separately by Warners and Rowling, respectively.  (This copyright quirk also comes into play when the source material for a character is in the public domain, but a well-known depiction in another media is not — a fine line that has recently been walked by the producers of highly-publicized Wizard of Oz and Snow White projects, and less recently by the developers of the American McGee’s Alice video games.)

From what has been reported, Danny Boyle’s presentation will be drawing on numerous, distinctive, and well-known literary characters, who have been depicted in equally numerous, distinctive, and well-known visual forms.  In short, if Boyle’s presentation uses characters drawn from literary works that are still protected by copyright (e.g., J.K. Rowling’s Harry Potter, Dodie Smith’s The Hundred and One Dalmatians, P.L. Travers’ Mary Poppins series), a license is needed.  Similarly, if the presentation uses the characters’ appearances from films in which they appear, a separate license would be needed as well.

Trademarks in Fictional Characters

Fictional characters can also be protected by trademark law.  Sometimes.

In order to achieve trademark protection, a fictional character must function in the minds of the public as a “source identifier,” such that if someone other than the trademark owner used the character, there would be a likelihood of consumer confusion.  And virtually anyone can guess the definitive example of the character-turned-trademark.

Suffice it to say that this can be a complicated inquiry.  Even more complicated is the analysis as to whether public domain characters (e.g., Alice and Captain Hook) can be subject to trademark protection at all (a complex topic for another day — but one that you can be certain has been studied exhaustively by Disney lawyers who are preparing for that dreadful day [should it ever come] when Congress finally allows Mickey Mouse to fall into the public domain).

Isn’t It All in Good Fun?

Finally, even if a fictional character belongs to someone else, that character can be used without permission under certain circumstances under the “fair use” doctrine.

Fair use in U.S. copyright law has a different analysis than fair use in U.S. trademark law.  Moreover, fair use in the U.S. has a different analysis than fair use in the U.K.  The formulation of the fair use test that is most familiar to U.S. lawyers comes from the U.S. Copyright Act, which considers (1) the purpose and character of the use (including whether it’s commercial or non-commercial), (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the potential market for the original work.  (Under trademark law, the inquiry is more focused on whether the use is “nominative” — i.e., whether it just factually describes something, as opposed to implying source, ownership, or sponsorship.)

But in either jurisdiction, wholesale copying of protected characters for use in a presentation that half the world will watch and that will generate a small fortune in advertising and sponsorship revenue (in addition to some mumbo jumbo about the majesty of sport, or something) is almost certainly not fair use.

Alternative Ideas from the Internet

Despite the inherent epic-ness of Mary Poppins versus Voldemort, many denizens of the World Wide Web have come up with even epic-er ideas, my favorite being from someone named DGallagher:

If it were up to me, the opening ceremony would include a massive battle for the soul of the world between Manuel from Fawlty Towers, John Cleese from Monty Python and the last five Doctor Whos who join forces to destroy a crowd of rage infected zombies from 28 Days Later.

That’s pretty good.  But I’d go bigger.

If I were Danny Boyle, I’d begin with a riveting investigation by Sherlock Holmes and Dr. Watson set in Orwell’s Animal Farm with Pink Floyd’s The Wall as the soundtrack, in which Paddington Bear makes a climatic appearance as the leader of the talking animals to simultaneously battle Richard III and “V” (from V for Vendetta) — to the death.  Meanwhile, Hamlet and King Lear would be making soliloquys in the background while the kids from Chitty Chitty Bang Bang fly in with Gulliver and some stowaway Lilliputians to have tea with Elizabeth Bennet, Mr. Darcy, and, of course, the zombies from 28 Days Later.  (This way the kids don’t get too scared by the zombies).

What?  You have a better idea?  If so, leave it in the comments….

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One Response to “IP Lawyers are Collateral Damage When Mary Poppins Battles He-Who-Shall-Not-Be-Named at London’s Olympic Games”

  1. [...] As we have written about before, fictional characters can be said to achieve their own sphere of copyright protection if the author sufficiently delineates the character.  Such protection lasts for as long as the underlying works describing the character remain protected by copyright.  Characters like Tarzan, Superman, Godzilla, James Bond, and even Freddy Krueger’s distinctive glove and the Batmobile have all been adjudged sufficiently delineated to achieve copyright protection.  It is elementary, therefore, that Sherlock Holmes, the most famous detective of all time, should be protected by copyright, too, right? [...]

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