Let Me Be Frank: Protecting IP Rights in Fictional Characters

In All, Intellectual Property by lowndestech

By: Alex Simser

Over the holidays, many of you saw the infamous “Let Me Be Frank” video monologue Kevin Spacey posted on YouTube following the announcement of sexual assault charges against him. In the video, the actor speaks directly to the camera as Frank Underwood, his character who was “killed off” of the popular Netflix series, House of Cards, after Spacey was accused of sexual misconduct by several employees of the show. The video hints at both the character’s death on the show and Spacey’s real-life legal troubles, revealing the double entendre in the video’s title. The video came as a shock not only because of its content, but also because of its blatant nose-thumbing at Netflix. You may have been wondering, can he do that?

Famous franchise characters like Frank Underwood can be protected by copyright law through the copyright in the film and script, but only to the extent of the author’s original creative expression. Copyright law generally does not protect stock characters; however, distinctive characters may be protected. Copyrights in characters were initially recognized in the 1930 Ninth Circuit case of Nichols v. Universal Pictures, where the court established the “sufficiently delineated” test – if the character has sufficiently original details, it is entitled to at least some level of protection.

But, as we’ll explain in a later post, a copyright holder likely cannot bring an infringement suit for statutory damages unless the work has been timely registered or applied for with the U.S. Copyright Office (an issue that is currently pending before the U.S. Supreme Court), and proving actual damages can be very difficult, particularly in a case like Spacey’s where the infringement may not really harm the owner. Additionally, establishing a character’s distinctiveness can be an equally difficult task.

The better way for producers to prevent an actor’s unauthorized use of their characters is through contract law. The actor’s contract should (and in Spacey’s case, most likely did) include work-for hire and assignment clauses transferring ownership of ideas, storylines, dialogue and the like developed by the actor in connection with the series or film to the producer, and should specifically prohibit him or her from depicting their character outside of the series or film without the producer’s consent. In such a case, Spacey could be liable to Netflix or House of Cards producers.

Of course, this all assumes they were not in on it…