Fictional Characters are APIs

... tl;dr: copyrighting characters or plot items is stupid.

Context

There was some recent news on how Disney is trying to trademark the Norse Gods.

Well, according to Snopes, this turns out to be false. They did not try copyrighting or trademarking them; however:

"(...) The company does, however, have ownership of the versions of these characters that it creates. If someone makes a piece of art that resembles the versions of Thor or Loki in the Marvel universe, the company could claim that those artworks violated its intellectual property. If someone wants to create unique versions of these characters, however, they would be in their rights to do so, as these are in the public domain. "

This is obvious. E.g. Harry Potter (the fictional character) is the Intellectual Property of J. K. Rowling, therefore anyone who would want to write a book featuring him or any part of that world can only do so with her explicit permission.

... wait, what?

Well yes. "Intellectual Property" is actually a thing (contrary to the opinion of many of its critics, arguing for the separate mention of patents, trademarks and copyright). As per Cory Doctorow's excellent (and impressively depressing) 2020 article on IP:

“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”

In this sense, yes, if Harry Potter is JKR's IP, then, by definition, she can control all of the above groups. Of course, it's still a question whether this is the case in practice... but it appears to be so. If I write a Harry Potter fanfic and try selling it, I'm reasonably sure they'd find me with one of "copyright" and "trademarks". Copyright, in particular, seems to be interpreted fairly widely, including "copying" of story elements, fictional characters, etc.

The main point of this article is that this is an overreach that really shouldn't be the case.

Meanwhile, in software-land...

... something similar was going on: are APIs copyrightable or not?

(Given the high probability of this generally being read by computer nerds, I will skip explanations of what APIs are.)

Ignoring the remarkably stupid and sad part where Lawyerland decided that they, in fact, are copyrightable (but there can be further debate whether it's fair use or not to do so)... most people who know anything about software (and aren't paid by e.g. evil database companies) agree that they should not be copyrightable. Namely, alternative, interoperable implementations of existing software are good for competition and generally result in a better world... not to speak of the original purpose of copyright, to be covering only aesthetic qualities of literary or otherwise creative works (... ignoring the functional aspects). APIs are fairly functional: it's impossible to create a working replacement for something without reusing its API.

Which leads to the somewhat strange comparison of...

"Harry Potter" is an API.

When I read a book, I do want events, places and characters I can relate to. "Harry Potter and the Chamber of Secrets" (part 2) is a whole lot more fun to read if I read "HP and the Sorcerer's Stone" (part 1) before. Which, in turn, is a lot more relatable to people who have ever seen pictures of the UK, castles and wanded wizards, as compared to someone who grew up in rural China and has never seen any of those. But it's likely that both of these readers would be a lot happier with a Harry Potter book than one written by and and about 11-tentacled sea aliens, mainly revolving about the Second Grand Grzzzzhg and its exciting societal events, full of [untranslatable emotion #3] (only to be interrupted with beautiful descriptions of the undersea sonarscape).

The point is: having read a book or having some background makes us a slightly different person; to resonate with this, a book needs to connect to what you've already read. Disney knows this: many people know something about Thor or Loki, so watching movies extending these personalities in custom ways is a lot more fun than creating some from scratch. It's a way to interface with some of their preconceptions. And actually naming them is a lot better at interfacing than merely describing someone who is a god and who also happens to have a large hammer.

Having companies "own" characters is them acting as gatekeepers towards part of your actual brain. You liked the Harry Potter books? Well, we just go and monopolize the kinds of things you might end up liking: if anyone else ends up writing something that you find familiar enough to like it, we'll just sue them out of existence, thereby increasing our profits (an excellent example of how you can profit from destroying value if your customers are still better off than everyone else. Just like Microsoft could profit from them being the only ones being able to read the MS Office formats, if they could enforce this. (They, fortunately, can't.)

Just like with APIs, there is no amount of extra effort you can put in to work around this. Yes, you can write a totally different book, but... your potential readers already know Harry Potter and would greatly benefit from you not having to explain again how everything works. You can't call on their existing knowledge because you're forbidden from naming or describing things that they do know.

Sure, it could be worse. The Hero's Journey is, as of now, not actually owned by Disney. It still doesn't make a lot of sense though.

But how about trademarks?

They're, when not being misused as part of the "IP"bundle", the most reasonable part of all the "IP" protections. Having a trademark on something actually doesn't mean that others can't use the name at all; it's just that they can't claim that their product is the one protected by it.

If you write a Harry Potter book called "Harry Potter and the Shadows of Mordor", you should definitely make fairly clear on the cover that you're neither JKR nor Tolkien. Actually, your book might be a piece of garbage in comparison that no one would be buying if they knew this. (In fact, there is a fairly sizeable chance that this is the case.) Actually, if you just didn't have either HP or Mordor in the title, you'd leave an even smaller chance of the buyer of the book thinking that they're reading a real sequel.

... but where exactly is the "customer confusion" if you do make it clear that you have nothing to do with either of them?

Or copyright?

The original point of "you shouldn't copy plots or characters" is along the lines of...

• JKR writes "HP and the Sorcerer's Stone"
• someone buys a copy, ends up liking the idea, and writes "The Rock of the Wizards", where the protagonist, Joe Carpenter, who turns out to be a sorcerer, is enrolled in the Northern School of Sorcery, which has four houses, named...
• this, in turn, ends up being the bestseller
• ... which is not too fair to JKR.

However... this is not copying the API; it's copying the implementation! Actually, if you write a book, set in the same universe, referring back to the events in Sorcerer's Stone, it's not only making the reader happy (hey, I know what happened! I was there! or... um... I've read it!), but also generates extra interest in the original ("hey, you should read Mordor's Shadow, but start with Sorcerer's Stone, otherwise you won't get what's going on").

... summary:

"IP" owners really want us to think that they have ultimate, thorough control of the very ideas their products embody. Sadly, courts sometimes actually believe this. However... the entire point of the laws giving them some of the control they claim is to ensure that actual good pieces of culture get produced.

Good artifacts of culture are calling into the right API surface. So, we just shouldn't give any private entity ownership of the API surface.

This is post no. 15 for Kev Quirk's #100DaysToOffload challenge.

... comments welcome, either in email or on the (eventual) Mastodon post on Fosstodon.