In a year that has already seen contentious litigation over the copyright protection of fictional characters in literary works (see my most recent article on the Sherlock Holmes case here), the federal district court in Los Angeles has recently ruled that the fictional sportscaster named Jim Brockmire, the creation of actor and voice characterization specialist Hank Azaria, is protectable under copyright law. The case, Azaria v. Bierko, emphasizes two fundamental principles of copyright protection: the requirement of detailed creativity in expression and the requirement of fixing the expression in a tangible medium.
The theory underlying the copyrightability of a character originated with Judge Learned Hand in 1930, who said that “the less developed the characters, the less they can be copyrighted.” Several cases have developed that theory over the years as copyright owners have sought protection for characters as diverse as Mickey Mouse, Rocky Balboa and James Bond. Accordingly, a character can be protected by copyright if, in the words of the court, it “has displayed consistent, widely identifiable traits that make it particularly distinctive,” in contrast to characters that have only generic and common attributes, which are not copyrightable. The court found that Azaria’s Jim Brockmire character had several distinctive attributes, from his appearance (which include his plaid sports jacket, red tie, and red carnation in his lapel), to his personality traits (which include his affinity for movie and television allusions, his colorful use of profanity and his volatile temper), to his personal history (including his roller-coaster marriage and career, both of which crashed and burned when he had an on-air meltdown after discovering his wife with another man), all of which, the court said, “are at least as individualized as several characters whose copyrights have been recognized in this District.” In contrast, the court found that the sportscaster character created by Craig Bierko, who contested Azaria’s ownership of the Jim Brockmire character, was extremely vague. Bierko described the character as “a white, male baseball announcer,” who is “between the ages [sic] 45 and 60, professional, well-trained,” who speaks in a “uniquely American and arguably musical” fashion, and who “shows a tendency towards being psychologically imbalanced.” In a refreshing flash of humor, the Court said that “None of these characteristics would serve to distinguish [Bierko’s] sports announcer character from any actual baseball announcer sitting in the booth on a given game-day.” For that line alone, the court’s case opinion is worth reading.
In addition to lacking distinctive character attributes, Bierko’s argument for the copyrightability of his sports announcer character was flawed by the fact that he had not sufficiently fixed the character in tangible media. The only fixations Bierko could produce were audio recordings of the voice and although Bierko argued eloquently for the distinctiveness of the voice (the sports announcer character “expresses himself in a driving, percussive cadence beneath high open vowel tones which drop suddenly and severely into a low, resonant bottom”), the court said “Unfortunately . . . a voice is not copyrightable.” (To be clear, words and voice records in recording media are copyrightable, but not a voice itself.) Azaria, in contrast, created a documentary for his Jim Brockmire character (not quite a feature-length documentary, but nevertheless a documentary). Entitled Jim Brockmire: a Legend in the Booth, the documentary shows clips from several notable moments in Brockmire’s career, including his meltdown and its aftermath, and it also includes scenes of celebrated sports broadcaster such as Dan Patrick, Joe Buck, and Rich Eisen talking about Brockmire and his career. All of which adds enough depth to Jim Brockmire, enough personal history, and enough character building to make him a copyrightable work.
As a copyrightable work, the Jim Brockmire character is an intellectual property asset that, over time, should grow in value for Azaria. If it did not have distinctive, definable attributes and if it were not fixed in tangible media, it would not merit protection under copyright law. So one serious takeaway from this humorous case is that while copyright is a branch of intellectual property, a copyrightable work is nevertheless property and therefore its intellectual expression must be concrete rather than abstract.