GearBits

Copyrights and Virtual People

I had a strange thought the other night. What will happen when virtual actors and actresses become more common and the studios that develop them start seeking copyright protection for their creations?

This thought was partly motivated by the 2001 movie Final Fantasy: The Spirits Within, which was completely CGI. It was heralded as a breakthrough in computer-generated people. Admittedly, breakthrough or not, the people were still pretty obviously computer-animated.

A more recent movie that I thought about when pondering this question is S1m0ne, which I didn't see. IMDB explains the plot as "A producer's film is endangered when his star walks off, so he decides to digitally create an actress to substitute for the star, becoming an overnight sensation that everyone thinks is a real person." Unlike Final Fantasy, the digital actress in S1m0ne was actually a live actress.

So what happens if a studio creates a recognizable character that looks convincingly like a human. Does it, or can it, hold a copyright on the look of that actor or actress? Would that copyright prevent another studio from using an actor, either digital or fleshy, that looks similar to the copyrighted one?

Looking into this, it seems there are several precedents for this copyright to be possible. A terrific example is what happened to the comic book character Howard the Duck (HTD), shown above, in the 1970's. Basically, HTD looked somewhat like Donald Duck, a prized possession in Disney's vast collection of intellectual property. According to this story, "How the Duck Got His Pants", Disney forced Marvel Comics to alter HTD's look significantly, forcing not only his body to change, but to also garb him differently (pants were added to his character to differentiate him from Donald, who never wears pants [perv!]). Disney's claims were backed up by a long-standing copyright on the look of Donald Duck.

So, let's say I create Dan Magnum, a digitally rendered actor who appears in a movie. I expect him to be a big hit, so I copyright him. His movie is huge and he's suddenly very popular. Could I restrict other movies or TV shows that have characters that look like Dan Magnum? What if the other characters are real people?

Let's say that Dan Magnum always wears a signature piece of clothing. Could I restrict other characters in movies and TV shows from using that same piece of clothing if there's a chance that those characters could be confused with Dan Magnum? From the Howard the Duck precedent, it seems that I could. But, this type of protection could never be realistically achieved if a real (human) actor was the star.

All this is very troubling. If an animated duck can be copyrighted, what's keeping a human from being copyrighted? Cartoon ducks have only so many degrees of freedom that we can manipulate to differentiate one from another, but lifelike humans have many, many factors. How many of those can a copyright cover?

I am not a lawyer, but this issue seems ripe for both abuse and proactive consideration. And I hope it gets addressed before it gets abused. Given the history of US copyright legislation, however, my guess is that it will be abused both before and after serious attention gets paid to it.