I remember having a conversation with a classmate of mine during my freshman year of college. I was trying to make small talk and being the socially awkward nerd that I am, I thought Harry Potter might be some common ground to talk about. But it was not. Turned out, she did not like Harry Potter and moreover, thought that Dumbledore was a rip-off of Gandalf!
I did not oppose this (in my mind, sacrilegious) statement, but a part of me also wondered whether she was right. There were common elements between the two characters like the robes, the long beard, the magic, and their role as a wise guide to a young hero. Was there something to my classmate’s point? After all, there were other common tropes and elements seen in many copyrighted works such as Superman and Homer Simpson, but that doesn’t seem to stop other artists from creating caped superheroes and four-fingered cartoon characters.
To understand the application of copyright law for these characters, there are a couple of hints one can gather by first examining various limitations within copyright law.
Copyright Protections for Fictional Tropes—What Are the Limitations?
A fundamental question in assessing whether copyright infringement has occurred is whether there is substantial similarity between the allegedly infringing work and the protectable elements of the original work. The key aspect for our discussion is that last part—what elements of a work are protected? There are obvious similarities between Dumbledore and Gandalf, but there is no copyright infringement unless the two characters are substantially similar to each other on elements protected by copyright law.
According to the U.S. Supreme Court, a work need only contain minimal creativity in order to be afforded copyright protection. But any part of a work that is taken from the public domain or is unoriginal under copyright law like a fact, concept, or idea is not protected by copyright law and may be used freely by other creators. Common tropes and elements thereof that are widely embraced are not protected by copyright law because these things fall into an area of abstraction similar to concepts and ideas. Such elements may be unprotectable due to other limitations in copyright law, including the doctrine of scènes à faire.
The Scènes à faire Doctrine
Under the scènes à faire doctrine, certain elements in a creative work (costumes, types of characters, scenes, or storylines, to name a few) that naturally or obviously follow from a certain setting or situation or are standard in the treatment of a given topic are not protectable under copyright law. For example, sports movies often contain a “training montage.” Parties, alcohol, co-eds, and wild behavior are natural elements in a story about a college fraternity. Similarly, superheroes are very commonly depicted wearing costumes and displaying their superpowers while fighting their enemies. Such generalized elements necessarily arise and flow from the time, place, and general setting in which the story takes place, and would not be subject to copyright protection under the scènes à faire doctrine. However, though such generalized elements are not protectable, specific expressions of those generalized elements may be protectable. The scene of Rocky running up the steps of the Philadelphia Museum of Art, for instance, would be a specific expression of the training montage and protectable under copyright law.
One case about the scènes à faire doctrine involved two books and a movie about the Hindenburg disaster, all of which adopted a theory that the disaster was the result of sabotage by a man named Eric Spehl. While the books differed greatly in style and objective, each book (as well as the movie, which was based on the later of the two books) described a few similar or identical elements—a scene in a German beer hall, the use of the greeting “Heil Hitler,” and certain songs such as the German national anthem. The U.S. Court of Appeals for the Second Circuit found these elements to be scènes à faire, holding that any story set in Nazi Germany is likely to depict such elements and accordingly held that copyright law did not protect those elements.
In another case, Hogan v. DC Comics, the plaintiff (a comic book author) claimed that DC Comics had copied protected elements from his comic book about a half-vampire. Specifically, he asserted that DC Comics had impermissibly copied elements of the character such as his name, his status as a half-man-half-vampire, his general appearance (young white male with pale skin, a medium build, dark and tired eyes, and dark hair that is scraggly, short, and unkempt), his “sinister genealogy,” the choice between good and evil that each character is faced with, and each character’s desire to uncover the truth of their origins through flashbacks or memories, among other things.
The federal district court for the Southern District of New York held that all of these elements were unprotectable. Specifically, the court found that the character traits such as their sinister genealogy and their desire to uncover their past were obvious and common when telling stories about half-monsters and as such would be scènes à faire. The remaining elements were too abstract and were more akin to unprotectable ideas.
The court in its discussion also noted the differences between the plaintiff’s character and the defendants’ character:
- the specific illustrations of each character were different;
- the defendants’ character had a clinical relationship with a psychiatrist while plaintiff’s did not;
- plaintiff’s character had a close relationship with the man who raised him while defendants had minimal to no contact with his vampire father or his biological father;
- defendants’ character experienced romantic relationships while plaintiff’s character did not
- defendants’ character’s journey to uncover his past was his own choice whereas plaintiff’s character was thrown into his journey by other characters;
- plaintiff’s character vowed never to fully become a vampire while defendants’ character chose to kill innocents and become a vampire.
These differing elements were quite specific and far from abstract ideas and as such, may have been protected by copyright. If the defendants’ character had displayed some of these specific traits or character arcs as the plaintiff’s character, then the court may have found the two works to be substantially similar enough to hold that there was an infringement. However, since the defendants only copied the more general, unprotectable elements of the plaintiff’s character, the court held that there was no infringement here.
Scènes à faire in the World of Tropes
Equipped with this understanding that general elements and tropes arising from a particular setting, scene, or genre are unprotectable unless these elements and tropes are expressed in a particular way, we see that the characters of Dumbledore and Gandalf are composed of elements that flow necessarily from the fantasy genre and magical worlds similar to many other wizards in fantasy fiction. As such, those elements could be considered scènes à faire and would not be protectable under copyright law. These elements would include their general appearance, carrying a wand or wizard’s staff, their mentorship of the protagonist, their rivalry with the villain or antagonist, and perhaps even their decision to sacrifice themselves so that the protagonist can carry on in their quest.
However, the specific combination of characteristics that made these characters unique, on the other hand, would have been protected. For Dumbledore, these elements would have included his role as headmaster of a wizarding school, his perpetual calmness, the impact of his sister’s death on him, and his particular eccentricities such as his fondness for “muggle” candy (to name a few).
For Gandalf, protected elements could have included his quick anger, his resurrection as Gandalf the White, his mastery of firecrackers, and specific events and character arcs that he undergoes. If Dumbledore and Gandalf shared one or more of these less abstract elements, there might be a stronger argument that the former was copied from the latter.
The scènes à faire doctrine as discussed above addresses why some common themes and tropes would not be protectable under copyright law. In a court’s view, these elements are necessitated by the setting of a story or a genre of work. However, there is one key distinction between wizards’ long beards and the German beer halls. The German beer halls existed in the real world in the 1930s and the Hindenburg stories were based in this historical period. Many Germans in Nazi Germany commonly used the words “Heil Hitler” as a greeting. So, it is clear how the scènes à faire doctrine covers these elements.
Wizards, on the other hand, are not real. There is no factual or historical basis from which we can conclude that all wizards have long beards. Likewise, there is no such thing as a superhero (at least in this universe we live in) and therefore there doesn’t seem to be a real-world setting that makes it necessary for superheroes to wear capes.
Were these common elements and tropes, then, the novel creations of some author? If not, where did they come from? If so, were they ever protected by copyright? Somebody would have had to be the first one to come up with a wise bearded man in robes, wielding magic and guiding a young hero. Even if they were the first, to what extent would that character have been protected?
Remember, the intent of copyright law is not to protect “novelty” or ideas and concepts that are too abstract. An author does not necessarily gain copyright protection for a broad character type or some other general idea by simply by being the first person to think of it. Copyright law protects instead, the author’s original expression of a general idea. In the next section, we look at the history of some of these tropes and why they may not have received copyright protections.
The Origins of Some Popular Fictional Tropes
The bearded wizard archetype has become a sort of standard in the fantasy world, be it in fictional works or in fantasy games such as Dungeons and Dragons. So many elderly wizards wearing long robes and pointy hats have graced the pages and screens that there are articles (such as this one) ranking the best bearded wizards. There’s also this article ranking the beards themselves.
The word “wizard” (from the Middle English word “wis” or “wise”) was, according to Merriam Webster, first used in the 15th century to refer to wise men (sages). The current wizard archetype (one possessing magical powers) only came later on in the 16th century. However, one of the earliest, and arguably most famous characters of this type, Merlin, was featured in the tales of King Arthur as early as the 12th century.
Merlin first appeared in the works of Geoffrey of Monmouth and as his stories were retold, he took various forms. He was depicted by Geoffrey as a youth (seen here, advising King Vortigern of his prophecies) and later as an older robed man (as seen here). These various forms were culminated in Sir Thomas Malory’s work, Le Morte D’Arthur, wherein Merlin takes on the role of a guide to young King Arthur. In modern examples, such as Disney’s 1963 film, The Sword in the Stone and the “chocolate frog collectible card” in the Harry Potter series, he appears to more closely resemble the wizard archetype of an old man with a long grey beard, pointy hat, and robes.
The character of Merlin is said to have been based on the Druids, a learned class of the Celtic people. They were depicted in Greek, Roman, Irish, and Welsh literature and records as having long beards and wearing robes. The druids were also depicted in Irish-language literature as sorcerers and seers with supernatural and/or prophetic powers.
So, it would appear that the correlation between the Druidic appearance and supernatural or magical powers predates Merlin. If the real-life Druids and the mythology surrounding them were indeed the inspiration for the character of Merlin, then it would appear that his outward appearance may have been taken from a general public perception of such figures.
Of course, other specific creative elements of the character and his stories may have been original enough to be protected under copyright law. But at the very least, the aspects of Merlin’s character that were derived from historical records and existing mythology (wise bearded wizard wearing robes) would not have been protected. A modern court might have found that a long grey beard and robes were necessary elements in any depiction of wise wizards and were, therefore, scènes à faire.
As such, any future characters that were inspired by Merlin (such as Dumbledore and Gandalf) would not have infringed upon the copyright of any previous characters (insofar as their general appearance is concerned). Of course, these stories and characters predate even the very first copyright law.
But what about copyright law and fictional tropes and archetypes that are more “modern”, like a superhero? Superheroes, on the other hand, were created in the early 20th century, well after the United States enacted its own copyright laws. Therefore, if the cape-wearing superhero was a truly creative addition not derived from the public domain, it could potentially have been protected by copyright. Nevertheless, multiple superheroes emerged from different publishers in the 30’s and 40’s, many of them wearing capes. A look into the history of superheroes shows us that capes were worn by different groups of people (fictional and otherwise) throughout various periods of history and that the capes carried different meanings.
According to this article by Ella Morton, capes were worn by military members of the Roman Empire. “Over the centuries, the cape and the sword came to be regarded as a package deal.” The cape was worn to mitigate the harm from a sword strike. The cape came to be seen as a symbol of strength and of warriors. Circus strongmen of the 1920’s and 1930’s wore bright primary colors to stand out in a crowd, tight clothes to showcase their muscles, and occasionally capes to appear even more broad-shouldered and visible. Indeed, it is these strongmen that served as the inspiration for one of the most iconic superheroes of all time and one of the first to wear a cape—Superman. Capes were also a symbol of aristocracy in many cultures. They implied “power, wealth, royalty, and/or all three.” They could also be used to conceal oneself—much like Batman did.
Therefore, it appears that the cape as a symbol of extreme strength and power predates the first comic book superheroes. Placing a cape on Superman’s shoulders while iconic, might nevertheless have been considered to be scènes à faire, as a necessary or obvious element when trying to depict a man or man-like character having extraordinary strength, power, unwavering morals, and a tendency to engage in combat. However, the dark-haired Superman himself with his distinct red cape with his blue suit emblazoned with an “S” that we all know is not a generic caped superhero. He is instead a highly creative expression of the common idea of a caped hero and is thus protected by copyright laws.
Guidance for Creators
There are numerous archetypes and tropes that have become commonplace in modern-day storytelling in any medium. These archetypes (superheroes, wizards) and tropes (ugly duckling transformation, walking away from an explosion) are often merely ideas and will not themselves be protected by copyright if used by creators. Similarly, there are many elements that would obviously or necessarily accompany these tropes that would be considered scènes à faire and would be unprotected.
That is why creators may use the bearded wizard in their stories without infringing anyone’s copyright since copyright provides a balance that also prompts artists to continue creating new works. Copyright law for fictional tropes will only protect the particular expression of the trope to the extent the expression is original under copyright law. A creator’s specific bearded wizard character would receive copyright protection for its original elements, just as Gandalf and Dumbledore both did.
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