Publication Date

Fall 2018

Document Type

Article

Abstract

Judge Learned Hand's decision in Nichols v. Universal Pictures is unquestionably seminal in the development of copyright law. For the first time, a court articulated that stock characters, a form of scènes à faire, are so fundamental that all should have access. Therefore, a stock character, like one defined simply as a butcher with a cleaver and in a white coat, is not copyright protectable material.

However, the specific stock characters identified by Judge Hand raise some previously unexplored questions. The decision identifies two stock characters: "the low comedy Jew and Irishman." What exactly is “the low comedy Jew and Irishman?” What are the characteristics of these stock characters, as imagined by Judge Hand, other than the respective character's religion and national origin? Does one run the risk of reinforcing stereotypes if one recognizes such stock characters?

The decision itself provides only a little guidance. Therefore, this article further explores some historical research regarding low comedy characters in common use prior to Judge Hand's decision, which suggests that there were particular, negative stereotypes in low comedy associated with specific races, religions, and national origins. From this historical setting and the fact that Judge Hand wrote as if any reader would implicitly know the stock characters, one can argue that the very foundation of stock characters is rooted in and may encourage stereotyping based on race, ethnicity, gender, sexual orientation, gender expression, nationality, and the like (“identity traits”).

This article then explores more recent decisions, which indicate that the risk of identity trait stereotyping is not simply one of the past. Certainly not all decisions, but some, as written or as summarized by later courts, utilize identity trait stereotypes as stock characters. Particularly given that scènes à faire are intended to express that which indispensably and naturally is associated, harm arises when a stock character is comprised of an identity trait and any other characteristic, indicating that what flows naturally from that identity trait is something more than just that identity - a stereotype.

Courts cannot solve the societal harm of stereotyping, but this article concludes by suggesting some steps that may minimize identity trait stereotyping in defining stock characters. While no copyright doctrine alone is to blame for society’s stereotyping and stereotypes, scènes à faire grants judicial approval for continuing stereotyping. Without more care, the consequences could not only further entrench negative stereotypes in the creative mind, but also in the minds of those who consume their creative product.

Publication Title

The Business, Entrepreneurship & Tax Law Review

Volume

2

Issue

2

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