“Such a character!” – pitfalls in using and protecting novel characters
We all know that guy or lady – the one who does impressions, or makes up a character and has us laughing all nite. Well, it was no laughing matter to Hank Azaria when he was threatened with infringement of a character he created that went viral. Azaria v. Bierko, C.D. Ca CV 12-9732 GAF (2/21/2014).
Azaria is an actor and voice performer (among many other voices, he voices several characters on the Simpsons). Since about 1986 Azaria kept his guests in stitches at parties with a fictional baseball announcer voice. In 1990 he was introduced by a mutual actor friend (Matthew Perry) to Craig Bierko – another comedian, who also did a fictional baseball announcer voice and character. They interacted with their characters and often “riffed” on their characters. Azaria wanted to use the voicing of Bierko’s announcer but Bierko refused.
Fast forward to 2010 (about 10 years later) when Azaria publishes a video on Funny or Die (note: has mature content) with a Baseball announcer character “Jim Brockmire”, and it goes viral. Azaria is considering expanding the “character” into more short stories or videos, but Bierko threatens Azaria for violation of his Baseball announcer voice and character – and Azaria sues for a declaratory judgment of non infringement/non violation of rights.
Bierko’s “character” was not well defined – and it was only twice fixed in a tangible medium – both times only in audio and in both cases, only the voice provided character definition. Azaria’s character was only fixed in a tangible medium once – however, the video has other announcers who “define” the character traits by describing Jim Brockmire, and Azaria’s portrayal of the fictional Jim Brockmire in the short video gave the character additional identifiable traits (type of clothing, style of announcing, over the top movie references etc) – many more attributes than those of Bierko’s 1 dimensional voice character. Ultimately the court ruled in Azaria’s favor. The court also held Bierko’s character was not protectable.
There is no legal question that fictional characters can be copyrighted, and hence, achieve protection from infringement. However, the character must be rather well developed – either textually or via audio or video means.
This case demonstrates a number of issues we see regularly in our media practice – a confluence of ideas (which are generally not protectable absent a contract), and multiple people building one thought or idea on top of another until something actually creative and protectable is born. When that happens – what are the rights of the parties? Who owns the character that is born?
Likewise, we often encounter the reverse issue – a creative person sees a short video or skit, or reads some story (whether about a real or made up person) and then their ideas start to form and they develop a story or character from that interaction with existing content. If they write that story or make the video, will they infringe the person/content they referenced or built upon? Was it fair use? Was the content even protectable?
The court avoided the 1st Amendment issue – but there is a also a strong question here whether the video – which is a classic parody of baseball announcers in general, would be actionable. Recall the numerous funny skits of Will Ferrell as Harry Caray – all protectable as fair use paraodies.
We enjoyed the Azaria case because it describes a rather typical scenario . . . where the creative thought process takes a long time to develop and sources from interactions with third parties (sometimes at parties) who at least provided a germ of an idea. If the facts had been changed only slightly (say that Azaria had never done a baseball announcer until he met Bierko) would the result have been different?
Determining whether a creative character is infringed, or can be protected, and to what extent, can be complex. If the media presentation is a classic parody you can fall back on the 1st Amendment in many cases – but if the character is going to be used in a more mainstream manner, it is important to consider both possible infringement issues, as well as protection issues. In terms of protection issues, as the Azaria case demonstrates, it is important that the fixation of the character (e.g. in audio, audio-visual, or textual mediums) describe a multidimensional and complete character.
For media clearance and protection issues please feel free to contact Mike Oliver or Kim Grimsley at Oliver & Grimsley.