Tuesday, November 01, 2005

Robots, Space Aliens and Estoppel

Here is a delightful story from Today's NY Times Arts section by Edward Wyatt that raises some interesting copyright questions (I have provided the internal link to the site mentioned):

The Story:
As a comedian, actor and satirist, Chris Elliott has made a career out of blurring the line between truth and absurdity. As a novelist, he has unintentionally fuzzied things further by falling for an online spoof and incorporating a fictional robot into his book as a historical figure. Boilerplate and his creator, Archibald Campion, from bigredhair.com.
Now, Mr. Elliott finds himself in a comic nightmare, bending over backward to avoid being accused of a comedian's cardinal sin - lifting someone else's joke - and agreeing to a financial settlement with the robot's creator to head off potential litigation.
"The Shroud of the Thwacker," Mr. Elliott's debut novel, published in October by Miramax Books, tells the tale of Jack the Jolly Thwacker, a serial killer terrorizing New York in the late 1800's. A spoof of period mysteries like Caleb Carr's "Alienist," the book also nods to the thrillers of Patricia Cornwell and, perhaps inevitably, to "The Da Vinci Code."
But it does so in characteristic Elliott fashion, mixing historical figures like Teddy Roosevelt, here seen as a disturbingly flatulent mayor of New York (a wink at those who know that Roosevelt was a police commissioner of New York, but never mayor), with fictitious creations like the police chief, Caleb Spencer. Some inhabit a kind of time-warped middle ground, like an intrepid reporter named Liz Smith who writes for a paper called The Evening Post and a time-traveling investigator named Chris Elliott.
To his satirical 19th-century mix of gas-powered wooden cellphones and imagined New York landmarks like the original Ray's Pizzeria, Mr. Elliott adds a minor but intriguing character named Boilerplate, a robot said to be developed by the inventor Archibald Campion in the late 1800's. According to a deliciously detailed Internet site that tracks the robot's history (bigredhair.com), Boilerplate was designed to replace humans in combat; it took part in Roosevelt's campaign at San Juan Hill, joined the hunt for Pancho Villa, and fought in and, ultimately, disappeared during World War I.
But in fact, Boilerplate never was. It is the creation of Paul Guinan, an illustrator and graphic novelist in Portland, Ore., who with his wife, Anina Bennett, is the author of "Heartbreakers Meet Boilerplate," published in July by IDW Publishing.
In an interview, Mr. Guinan (pronounced GUY-nan) said he learned of Boilerplate's inclusion in Mr. Elliott's novel when he read a local newspaper article last month about a promotional appearance by Mr. Elliott in Oregon.
In the acknowledgments section of his book, Mr. Elliott says that Boilerplate came to his attention thanks to research performed by his brother, Bob Elliott Jr. "You can't make up something like 'Boilerplate,' " Mr. Elliott writes. "Well you can, but it's a lot easier when your brother just shows you a picture of it."
Soon, Mr. Elliott heard from friends of Mr. Guinan, who said that he was considering legal action for the "fairly blatant and quite unauthorized" lifting of a copyrighted character.
Mr. Elliott, who is scheduled to give a reading tonight at 7 at the Barnes & Noble at 4 Astor Place in Manhattan, said in an interview that he knew Boilerplate was some kind of a spoof. But, he said, he thought it was a 19th-century spoof, not a postmodern, post-dated parody of a hoax.
"I knew something like that could not exist," he said. "It was an innocent mistake, and I felt like such an idiot. It made me feel like less of an idiot that the background information he gives on his Web site is fairly convincing."
Mr. Elliott said he did find a bit of humor in the episode: "I think it's really kind of funny. The whole thing about this book is that I did almost no research for it, and the one little bit of research I did I got wrong."
Mr. Elliott, it turns out, is not the first person to be caught in Boilerplate's net. The Boilerplate site's digitally altered period photographs have roped in a number of victims, including various students of robotics who have asked technical questions about Boilerplate's means of propulsion and other historical details.
Mr. Guinan said on Saturday that Mr. Elliott had agreed to pay him a percentage of his earnings from the book and would credit Mr. Guinan's creation in future editions. The two negotiated a settlement themselves, both said, sharing a desire to keep lawyers out of it. They were both surprised, they said, that at no point in the publication process did anyone at Miramax raise questions about the legal standing of Boilerplate.
Judy Hottensen, publisher of Miramax Books, said the company had lawyers look at the manuscript, given that the story included real-life characters. "But it has things like wooden cellphones powered by gas, and all this other crazy wacky stuff," she said. "The robot just didn't hit the radar screen."
END OF STORY

There are at least two interesting issues here. The first and obvious one is spoofing a spoof, and the fair use possibilities where, like the original spoof, the spoof of the spoof is transformative and in the same way. Mr. Elliott's being taken in (are all comics that gullible?) of course adds a different twist. The second issue is what is sometimes called factual estoppel: If someone represents something as being true, as being factual, are we free to taken the person at their word and use it as a fact, or should a court (hearing the ultimate dispute) exercise, well, judgment: "You may say that the book was written by Oliver, a space alien from Thebes, but I don't think so;" or, "You may say every word in your 1,000 book on Wyatt Earp is factual, but I don't think so." It is a dilemma: do we say that people should make the bed they lie in, or should use common sense? Do we save Paul Guinan (the creator of the fictional robot history) from himself, in other words?

9 comments:

Max said...

The concept of estoppel here is an interesting one. I assume that courts would likely follow a reasonable person standard, but in the case of the robot, well it's entirely reasonable that in an era where people kept trying to pass off perpetual motion machines somebody would try to pass off a robot.

OTOH, in a world where Photoshop is sold on just about every street corner (and Gimp is available for free -- www.gimp.org), it's also perfectly reasonable that somebody would doctor old photographs to pretend that another somebody tried to pass off a robot.

Which is more reasonable? And how can a court be expected to make the right choice? If we say "tie goes to the runner," which is the runner?

William Patry said...

A bit like Zelig

Joe Gratz said...

On the estoppel question, can we draw a parallel to supernatural-author cases? They're similar in that the work itself asserts that it is not copyrightable when it is, in fact, copyrightable, being the original expression of a living human.

On one hand, I think it's unfair to create a trap for the unwary, in the form of a "submarine copyright"; characters presented as historical figures should be able to be reused as historical figures.

On the other hand, there are plenty of books with imaginatively-drawn, obviously nonhistorical characters that claim to be historical, like the Lemony Snicket series or The Pushcart War (which fooled me, at least at age eight). If we're going to protect characters, we should protect those.

William Patry said...

The reference to Oliver was to the supernatural cases. But whatI find a bit baffling is whether Chris Elliott was actually fooled. It is hard to believe most people would be, not taking away anything from the ingenuity of the site. If we wasn't taken in, the fair use aspect of the case becomes more interesting, the spoof on the spoof, but had he admitted doing it on purpose (if he did), he may have had more trouble settling or had to cough more dough up. Hard to figure out.

Randy said...

I'm missing something here...

Did Eliott borrow a photo? Did he plagiarize a paragraph of text?

If all Eliott did was include a character called "Boilerplate" in his novel, what copyrightable element of the original work did he infringe?

It's my understanding that most comic book characters, for instance, are protected by Trademark law and not by Copyright.

I don't think I'd be violating Copyrights by creating my own drawing of Spiderman, for instance. But I'm pretty sure I'd be violating trademarks if I tried to use my artwork in a publication...

Am I wrong? If so, what am I missing?

Mercury Studio said...

The book contains illustrations that were clearly drawn from the illustrations that appeared on the Boilerplate website and in the Boilerplate graphic novel.

-Steve Lieber
(a studio-mate of Paul Guinan's)

Anonymous said...

My guess is that Chris Elliot or his researcher thought that it was a spoof dating to Victorian illustrated magazines as opposed to a modern spoof of what a Victorian era illustrated magazine actually published. But maybe its a modern spoof of a Victorian era spoof and that might come out in Paul Guinan's deposition if one had been taken. Or maybe a forensic researcher, if one had been hired, would have found curiously similar robot illustrations in actual Victorian era illustrated magazines - - of which there is a very large population with pictures of just about everything. Of course, having dropped the notice requirements from the U.S. Copyright Act the fact that this artist recreated a faithful period image solidly placing that image, were it genuine, in the public domain, has no impact at all on a validity of the artist's modern copyright in the work. So estoppel is the only recourse in defense. I expect the fact of an estoppel would turn on whether the artist intended to successfully deceive about the provenance of the piece (either as a period fact or as a period spoof) or was simply borrowing a graphic idiom.

The curious part is the seeming lack of appreciation by Guinan for the performance aspect of his own work. Artsist to artist, instead of grubbing a certainly small royalty out of Chris Elliott, he should have been satisfied with the humor and art of the fact of Elliot’s appropriation. It’s kind of disappointing. Artists frequently are when they turn away from art to commerce. The best part of the post is learning that the matter was settled ego to ego without interpreters. Never would have been settled otherwise.

Anonymous said...

Mr. Patry, out of curiosity, what's the theory on your posting of the entirety of this NY Times article that otherwise requires a subscription -- fair use? Or do you have permission? I know most bloggers stay away from doing this and prefer to link to such articles and maybe post a quote of just a sentence or two, for fear of infringement.

While I know it's not all about numerosity, as a back-of-the-envelope kind of analysis it seems to me that your short commentary here wouldn't support a fair use of the entire article.

Just curious, not criticizing.

Max said...

OK, I hadn't looked at bigradhair when I posted earlier. Serving with the Rough Riders should have been a tip off.

But without that historical detail, it may have been reasonable to believe somebody in Victorian times put a person in a C3PO suit and tried to pass off a fake robot.

But it would still have been reasonable to believe that the whole thing was a modern fabrication.