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ted_charlie_split

A California production company is backing away from its copyright infringement claim against Family Guy creator Seth MacFarlane and his titular character in the hit comedy film Ted.

Bengal Mangle Productions (BMP) had filed a suit against MacFarlane mid-last year, alleging that MacFarlane’s film’s titular character Ted, a crass talking stuffed-toy bear, was copied from BMP’s running series of web shorts feature the character “Charlie the abusive teddy bear.”  According to BMP’s initial complaint, Charlie, similar to Ted, lives in a “human, adult world with all human friends . . . has a penchant for drinking, smoking, prostitutes and is a generally vulgar yet humorous character.”  The series of shorts has been apparently on-going since 1996, and clips of it are available on sites such as YouTube.  According to BMP, these clips have collectively received over 1.2 million views.

It’s not shocking that BMP sued if at the time they thought they had a valid claim. Ted was one of 2012’s most profitable films, making $549 million on a budget of only $50 million.  The film’s success also catapulted MacFarlane to greater fame beyond his involvement with Family Guy, even leading to an Oscars hosting gig in 2013.

Details of why BMP has decided to drop its lawsuit at this juncture are pretty sparse.  A statement from Media Right Capital (MRC) said that, “[BMP] has conceded that the Ted character was independently created by Seth MacFarlane using his own efforts and creativity.”  The Stipulation for Dismissal document filed with the court states that BMP “is now satisfied that, based on discovery produced in the action, the character Ted was independently created by Seth MacFarlane.”

What evidence that came to light during the discovery phase that convinced BMP to abandon its claim is open for speculation.  As previously discussed,  as part of a copyright infringement claim a plaintiff must show that the accused infringer had access to the work in question before he created his own work and that the two works are substantially similar.  It may very well be that MacFarlane was able to produce evidence, such as a character sketch or spec script, that showed that he had conceived of the idea of a raunchy talking-bear prior to BMP’s production of its Charlie series.  A more likely scenario is that BMP found that it was going to have an uphill battle to prove that MacFarlane had access to the Charlie web-series.  No disrespect to BMP, but 1.2 million hits on internet-posted clips of a series of sketches that BMP has been doing since 1996 is hardly setting the world on fire (I, for one, had never heard of Charlie until news of the lawsuit dismissal broke out, and I pride myself on being culturally enlightened. . .but don’t get me wrong, I’d KILL if this blog had 1.2 million hits! (we aren’t even close, in case you are keeping score. . .tell your friends about us!)).  The fact that the Charlie series was available on YouTube and other sites is hardly a smoking-gun either, since the internet is filled with a lot of crud that most of us have never seen or been aware of (nor do we necessarily want to . . .ignorance is a virtue when it comes to the world wide web).

Still, another possibility that may have played a factor in BMP’s withdrawal is the strength of the copyright protection around Charlie the Abusive Teddy Bear.  I’ve never seen Ted but I have watched the trailer, which is about equal in length to the 1.5 minute Charlie skit that I watched on YouTube.  So I feel well qualified as an unbiased judge given my more or less equal exposure.  There is no denying that Charlie and Ted are both pretty similar characters.  Both are talking stuffed-bears who are obnoxious, loud slobs and engage in foul behavior for comic effect (although I find Ted to be funnier, but that has more to do with the quality of the writing and MacFarlane’s excellent voice acting).

However, copyright protection for fictional characters, and whether another character is infringing, can be pretty tricky.  Characters from fictional works, especially good ones, tend to take a life of their own and be potentially re-imagined or re-purposed in a variety of settings – which has lead the courts to struggle with the concept of extending copyright protection to characters when they are used or appear outside of their original work.

The main test that has been widely used by courts is the “distinct delineation” test, which was advanced by Judge Learned Hand (I’m not making the name up) in the decision in Nichols v. Universal Pictures 45 F.2d 119 (2d Cir. 1930).  In that case, it was held that ‘stock’ characters or other characters who lack well-defined or unique characteristics and features were not protected, since to do so would unnecessarily burden authors from writing in similar genres and would unnecessarily extend copyright protection to the ideas behind vague, ill-defined characters (thus violating the idea-expression dichotomy).  For example, Batman is copyright protected, but the generic henchmen and gangsters that he fights are likely not.  The problem with ‘distinct delineation’ test is that there is no clear boundary for when a character is distinctive enough to merit copyright protection.  Additionally, visual characters, such as those in comic books or film, seem to have an easier time in meeting the distinctiveness threshold, since by necessity they are more detailed and recognizable, as opposed to characters that exist only in written form as ‘word portraits’  (See Gaiman v McFarlane (no relation) 306. F3d 644 (7th Cir. 2004) and Walt Disney Productions v. Air Pirates 581 F.2d 751 (9th Cir. 1978)) For example, think of how hard it would be for Charles Dickens today to argue that his character ‘Pip’ from Great Expectations is copyright protected when alleging infringement by another novel that features a young boy who brings food to an escaped convict.  Finally, even if copyright protection for a character can be established, that character may embody non-copyright-able ideas or traits that exist in the public domain or are general to the genre that the character appears in.  For instance, Archer may share certain characteristics with James Bond (both are international spies, and enjoy booze and beautiful woman), but those elements are likely concepts inherent in the spy-genre that they both inhabit (not to mention that Archer is arguably a parody).

Getting back to the question of Ted v. Charlie, although there are similarities, neither character is necessarily all that original.  Literature and film are filled with several examples of anthropomorphic bear characters, many of whom fill a comic role.  Think of Winnie-the-Pooh, Paddington Bear, Corduroy, the Berenstain Bears or even the bear from Toy Story 3.  And most of these bears have singular personalities, similar to Charlie and Ted (albeit more G-Rated ones).  So it may very well be that walking and talking bears with stock personalities are non-copyright-able ideas.  And even with the first-glance similarities, there are also differences between Charlie and Ted.  Charlie is actually human-sized, while Ted is the size of a typical stuffed toy bear.  Ted has a more well developed background (coming to life after Mark Walhberg wishes on a falling star) than Charlie does (at least I think).  Even in the specifics of their personalities do they differ.  Ted is closer to a fast-talking, obnoxious twenty-something ex-frat boy, while Charlie behaves more or less like the stereotypical fat, sloppy, over-weight abusive husband.  It could very well be that BNP found that showing that Charlie was entitled to copyright protection AND that MacFarlane copied Charlie was a much more uphill battle than they anticipated.

In summation, we likely will never know exactly what factors caused BNP to drop its infringement claims, but it is certain that copyright protection for characters is not always going to be clear.

P.S.  Still no word on whether Snuggles the Bear (of laundry detergent commercial fame) will file his own lawsuit for copyright infringement and trademark dilution against MacFarlane.

There is undoubtedly a creepy resemblance.

There is undoubtedly a creepy resemblance.