Not sure if copyright questions belong here or in cafe society? Anyway in the current season of Doctor Who there’s been speculation that various new characters (Mrs Flood, Belinda) could secretly be a classic character, The Rani, regenerated into new form and pretending to be the new character.
But, the rights to the old character The Rani belong to an estate, so they would have to license a new appearance.
So my question is, if you have a new character get established for a while, and then suddenly they are revealed to secretly be an older character you don’t own the rights to…do you just have to license the rights from the point of the reveal, or do you now retroactively owe fees for the pre-reveal appearances?
Keep in mind, they are played by different actors and portraying an effectively shape shifting alien.
In the United States? Probably not. For a fictional character to receive copyright protection (in the US at least) the character needs to be central to the story … basically about them. So The Doctor gets copyright protection. His companions? Daleks? Weeping Angels? K9? Those would probably end up in court which is why IP attorneys are rich. But simply a character that’s not integral to the story? Nope, no protection.
would they not have also take on the appearance, mannerisms, characteristics, phraseology whatever that made the previous character distinctive. Just saying “I am Rani, returned from the dead” - how does that usurp the old character if the new character is not a demonstrable copy?
There’s no one single price to license something that someone else has the copyright for. It costs whatever price you negotiate with them. Sometimes, a copyright owner will set blanket terms (“anyone can license this work if they do such-and-such”), but they can still set whatever terms they want, and cover details like this however they want.
I’m surprised that this could be true. Normal procedure is that the program retains all rights to any character created for it. Terry Nation did retain rights to the Daleks, but the Rani didn’t appear until the interregnum between the classic and new series. But it’s possible no matter how surprising it is. UK norms as well as laws are far different from US, and both has changed over the years.
If you don’t have the rights to a character, you don’t have rights, period. The rights holder can do anything they want at that point. Sue, license, prohibit any use, or just say yes. Everything depends on the contract signed at the time the script is purchased. Copyright has nothing to do with it, in America at least.
It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.
Yeah I guess the British copyrights are more relevant here, but I’m just using that as an example, I’m curious how it would work in the US too. I assume they would work things out in advance usually but I could see writers coming up with the idea as a twist after the fact too.
The case turned on matters of contract law, as I supposed earlier.
The U.S. Court of Appeals for the Ninth Circuit reasoned that because the contract between Hammett, Knopf, and Warner Bros. did not explicitly mention the rights to the characters or their names, those rights were not included in the grant. The court applied the principle of ejusdem generis, suggesting that general language in the contract could not be interpreted to include rights not specifically mentioned. The court further supported its decision by noting the common practice of authors retaining rights to characters for use in other works, which was evident in Hammett’s continued use of his characters in subsequent stories. The court also observed that Warner Bros., being an experienced motion picture producer, should have clearly specified any rights it intended to acquire.
Nevertheless, the court also made the statement you quoted, so thank you for that. The case was adjudicated in 1951, therefore under the 1909 copyright law, which I’m not that familiar with. I wonder if more modern decisions have come to different conclusions.
Well, the Rani was very much in the classic series, appearing in stories with both Colin Baker and Sylvester McCoy. Both stories were written by Pip and Jane Baker, who were free-lance writers.
I’m looking at a BBC contract for something I wrote for their radio service at around the same time, and while I’m sure there would be differences in a TV contract, I don’t think it would be fundamentally different.
Essentially, the BBC had the right to broadcast the material in return for a fee, and to broadcast a set number of repeats across its various services, plus a few (at the time) relatively trivial other rights, like educational use, all for various percentages of the original fee.
At no point do they claim ownership of the copyright on the material, and I don’t know if they could, under UK or EU law.