Q: My company is producing a film which has a character that is taken from another very well known film. This new story has absolutely nothing to do with the previously established film, is not in any way a sequel and we never even see the other person, they’re invisible in the mind of a lunatic and it’s questionable whether they exist or not. He just mentions them by name and says that they’ve been friends since he saw that movie. What’s our legal leg to stand on to be able to keep this character by name, in the script, which adds a great deal of humor as he interacts with the character and we can’t see it… or is it better to hedge our bets and make it a completely made up invisible friend? I seem to be stumping every lawyer friend I have with this one, as it’s a peculiar case… any thoughts? Or, is there an alternative in just securing permission from the controlling entity of the previous film?
A: This question will be answered by one of my best imaginary friends. The only friends most lawyers have are imaginary, and even they don’t like their lawyer friends too much — they essentially befriend lawyers for free legal advice. Why would anyone have an imaginary friend who doesn’t like them is not a question for this blog, but for my popular psychiatry blog, “Legal Angst.”
Just like an imaginary friend is real in the mind that created it, the unseen character in the mind of your lunatic character is really used in your film. Just because the invisible character you’re using from the other film is not visible on screen doesn’t mean you’re not using it. If you filmed an adaptation of The Invisible Man, without showing him or her (of course, it’s him, but still it’s safer to be gender neutral) to the audience, you’d be hard pressed to think that you’re not using him. And if you remade The Wizard of Oz without ever showing the Wizard, the movie would still entirely depend on the Wizard. Jason, from Friday the 13th, is not actually seen in the original film; even though unseen, he drove the plot of the original and spawned one of the most successful horror franchises in history. Just because a character is not seen in a movie doesn’t mean the character is not used.
So you’re using a character to which someone else owns the copyright. Generally, in a movie, you can’t use the copyright that is owned by someone else without a license. Fictional characters, however, enjoy weak copyright protection in the United States. (And even weaker protection in England, for example. The reason has to do with the monarchy, I’m sure.) This is a highly complex and blurry area of the law, as are most other areas of the law. Most areas of the law are intentionally kept complex and blurry by lawyers so that you would have no idea what the law is and would have to pay a lawyer huge sums of money to explain to you that it’s complex and blurry. When I started practicing more than ten years ago, there were still a few clear areas of the law; but we’ve been working hard the last ten years and have complicated and blurred them up also. I digress. Basically, the more a character is delineated the stronger the copyright. James Bond is more protected than Suit #2 from Avatar.
But even if the character you want to use arguably isn’t very well delineated, whoever owns it (especially if a litigious studio — and there aren’t any non-litigious studios) might very well want to engage in that “argument.” Arguments like this involve lawyers, juries, and judges, which, depending on your film, may exceed your budget.
So your idea of making up an original invisible friend is a good solution. And of course, securing permission from the owner of the invisible character would do it, too. Finally, your lunatic character is free to continue his imaginary friendship off-screen — I’d hate to see another fake friendship destroyed by legal squabbles.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.