Two recent developments have raised questions about the amount of control an author has over his characters once they leave the womb of his or her creative imagination and enter the collective consciousness. There’s a fine line between the public awareness and the public domain, and just because a character has embedded itself in the public imagination doesn’t mean that it is up for grabs. Our entire system of intellectual property protection is designed to give the author control of their creations, but what happens when the character gets bigger than its creator?
There has been enthusiastic coverage of a recent issue of X-Factor from Marvel comics in which writer Peter David depicts a gay kiss between mutant superheroes Rictor and Shatterstar. Some of the more hyperbolic stories about this development have called it the first homosexual kiss between two super-heroes in mainstream comics. Actually, there have been several man-on-man kisses in the four-colored world but I’m just happy when I see news stories about comics that don’t feature “Bam! Pow! There not just for kids anymore!” in the headlines. Over the years, there have been hints and intimations of a deeper relationship between the two characters, but this is the first fully realized confirmation of their sexuality. What makes this news interesting is the reaction of Rob Liefeld, the artist who created the character of Shatterstar.
“Want to add, that I have nothing against gays, I have gay family, nuthin’ but love here.
Ditto gay characters if thats’ what their true origins are.
As the guy that Created, designed and wrote his first dozen appearances, Shatterstar is not gay. Sorry.
Can’t wait to someday undo this.
Seems totally contrived.
Shatterstar is akin to Maximus in Gladiator. He’s a warrior, a Spartan, and not a gay one.”
Looking past the selective reading of Greek history, we see an author worried about the later treatment of a character he created. Comic books are unique among other forms of media in that they are perpetually serialized. When a writer or an artist or a collaboration between the two create a character like Shatterstar they do so as a work-for-hire and the character becomes the property of the publisher, Marvel comics in this case. With any luck, they will continue to publish issues featuring those characters for years or decades after the original creators have left the project behind. Rob Liefeld does not own Shatterstar; he possesses no droit d’auteur, or natural right in the integrity of his creation. At least none that U.S. copyright law recognizes. But he still feels a sense of propriety over the character. He seems to be saying that since he conceived the character, he has a better knowledge of the truth behind him and how he should be portrayed, despite the fact that Shatterstar is a parcel of intellectual property wholly owned by Marvel Comics and they are paying Peter David to portray him however he wants. Liefeld’s comment that he “can’t wait to undo this” is a telling reminder of the curious nature of comic book characters. Because their stories are ongoing, the characters develop, devolve, and start again through numerous iterations as new creative teams make their mark on a book. Status quos are constantly in flux, and Rob Liefeld might even get the chance to undo these changes someday.
Contrast that with the recent decision in the New York District Court permanently banning the U.S. publication of a novel featuring an elderly Holden Caulfield called 60 Years Later: Coming Through the Rye .
Caulfield is the protagonist of reclusive author J.D. Salinger’s The Catcher in the Rye, a seminal coming of age book in which a self-absorbed teen wanders around New York City observing the phoniness of modern society. “J.D. California” wrote an unofficial sequel of sorts featuring a grown-up version of the character, referred to in the text as “Mr. C”, who revisits several locations and characters from the original novel and reconsiders the story from an older, wiser perspective. Salinger did not approve and took legal action against what he argued was a pure and simple case of copyright infringement.
California, whose real name is Fredrik Colting, argued that his novel constituted a fair use of the protected work under 17 U.S.C. 107. Judge Deborah Batts didn’t buy this contention, holding that Colting’s work wasn’t transformative enough to qualify as parody or critical statement on Salinger’s perennial novel of teenage rebellion. I haven’t read the novel in question, and this recent decision ensures that I may never have the opportunity to do so without travelling to places where American copyright law does not reach (like Great Britain, where the book already sits on bookshelves across the land) since the injunction will stop publication of the book until the case goes to trial and the litigation is settled. But the subtitle alone suggests to me that Colting’s novel was intended as commentary upon the original work and Salinger’s depiction of Caulfield: “An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and His Most Famous Character” suggests some degree of critical intent, and therefore should fall under the fair use exception to copyright infringement. But Judge Batts ruled that the story of an older version of Caulfield contained no “reasonably discernible rejoinder or specific criticism of any character or theme” of The Catcher in the Rye. Therefore it can’t be a fair use, since it is too general to be a focused parody and can’t satirize the original.
It is beyond question that Salinger owns the copyright to his novel. The story of Caulfield’s angsty odyssey belongs to Salinger, but the idea that he owns the character himself seems at odds with the typical role of popular culture. Holden Caulfield has become something of a stock character who stands as a sort of shorthand for adolescent alienation. He may be bigger than Salinger in the same way that Ishmael is bigger than Melville or Romeo is bigger than Shakespeare. But part of the reason that Salinger exerts such control over his creation is because of the finite nature of his novel. Salinger has no intention to write a sequel to the novel and he goes out of his way to oppose new adaptations of the work, preferring to let the original stand alone as the final word on the story.
J.D. Salinger and Rob Liefeld are both creators who want keep a stranglehold on their creations, one through influence and one through copyright infringement suits. Their circumstances are wildly different; one is a reclusive novelist seeking to nix new uses of his character and the other is an artist who designed a comic book character as a work for hire and objects to later homoerotic depictions. Both stances make a certain amount of intuitive sense, but don’t really jive with the way culture works. Creations tend to take on a life of their own once they become part of the public discourse. Minor characters from older works become central characters of new ones all the time. Wicked, Rosenkrantz and Guildenstern are Dead, and The Wind Done Gone are all examples of stories that feature characters from previous books. Only the last was subject to a copyright dispute, and the novel retelling the events Gone with the Wind from the perspective of Scarlett O’hara’s half-sister met the fair use standard that Colting’s novel missed.
So how much control should an author have?