Comic Art, Creativity and the Law

Comic Art, Creativity and the Law

Elgar Law and Entrepreneurship series

Marc H. Greenberg

The creation of works of comic art, including graphic novels, comic books, cartoons and comic strips, and political cartoons, is affected, and at times limited, by a diverse array of laws, ranging from copyright law to free speech laws. This book examines how this intersection affects the creative process, and proposes approaches that encourage, rather than limit, that process in the comic art genre. Attention to the role comic art occupies in popular culture, and how the law responds to that role, is also analyzed.

Chapter 6: Copyright law’s impact on the creative process in comic art

Marc H. Greenberg

Subjects: law - academic, information and media law, intellectual property law

Extract

A substantial majority of works of sequential art, particularly in the area of comic books and graphic novels, are focused on the adventures and activities of distinct fictional (and occasionally non-fictional or semi-fictional) characters. Since these characters are a form of literary expression, the principal legal doctrine that protects them is copyright law. Statutory copyright law does not directly address characters. The term ‘character’ is not referred to in the definitions found in section 101 of the Copyright Act, nor is the term found anywhere else in the statute. To the extent the law has offered copyright protection for characters, separate from the works in which they appear, this has developed via judicial decisions extending the protection under the broad umbrellas offered by the statutory grant of copyright to literary works, works of fine art, and audiovisual works. The principal two issues these cases have addressed with respect to characters were what defined a protectable character under copyright law, and the extent to which the ‘work for hire’ doctrine in copyright law could be applied to characters created for, and used by, a publisher of comic books. There is a rich body of legal decisions regarding issues relating to characters in comic art, however not all of these cases address issues impacting on the creative process in comic art.

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