ISSN 2291-9732

What We Talk About When We Talk About Fictional Characters (and Copyright)

Steven Wilf

Abstract

What do pictures want? Echoing the famous question posed by art historian W.J.T. Mitch-ell, this article interrogates that query within the skein of copyright law. The creation of a fictional character means seeing a possibly singular, inert image as having a past and a fu-ture, a panoply of emotional responses and, significantly, desires. Fictional characters are not copyrightable per se. Rather, protection stems from expression of those characters in copyrightable works. To determine whether fictional characters have reached the threshold of complexity worthy of copyright, courts inquire how well a character has been delineated. For nearly a century, copyright has relied upon traditional round character literary analysis which looks at a character’s distinguishable features from the audience’s point of view. Recently, flat protagonist criticism examines whether the character serves as a proper ve-hicle for the author’s story. This article takes another approach—asking what the image is trying to tell us about its own absences, needs, and emotional lacunae. Beyond establishing protection, we need to query what protagonists are unworthy of copyright. I argue that stereotypes should be held to stricter scrutiny as creating insufficiently desiring characters.

“There’s nothing sadder than a puppet without a Ghost.”

Ghost in the Shell

This essay’s title is shamelessly borrowed from Raymond Carver. In the first paragraph of

his story What We Talk about When We Talk about Love, readers are introduced to Mel McGin-

nis, who claims the right to ruminate about romance around the kitchen table with friends

because he is a cardiologist. What makes McGinnis a character with more than a few

rounded touches? Is it his profession, gender, and image, or his fleeting brushes with the

emotional side of the human heart? Fictional characters are not copyrightable per se; rather,

the protection stems from the expression of those characters in copyrightable works.

Anthony J. Smits Professor of Global Commerce, University of Connecticut School of Law. Earlier versions of this article were presented at the Yale Law School Copyright and Collaboration in the Theater Conference, organized by Derek Miller and Brent Salter, and the Tel Aviv Law Faculty Workshop on Law and Technology, organized by Michael Birnhack and Assaf Jacob. My special thanks to Christine Ross who prompted my interest in Annlee. I appreciate the comments of Marta Figlerowicz, Julia Simon-Kerr, Willajeanne McLean, Brent Salter, and Simon Stern. Carlos de la Cruz and Luc Saucier generously responded to my queries. The curators of the Van Abbemuseum in Eindhoven, particularly Margo van de Wiel, were remarkably helpful in providing materials. I could not have written this article without access to their archives.

52 Critical Analysis of Law 7:1 (2020)

Courts therefore must determine whether fictional characters reach the threshold of com-

plexity worthy of copyright.

Characters inhabit storyworlds. And it is impossible to disentangle a fictional per-

sona from its context. Indeed, the United States Copyright Office insists fictional characters

constitute a “mere concept” and are not themselves copyrightable. Instead, the rendition of

a character is protectable within the context of the expression of the work as a whole.1

Other jurisdictions, such as Israel, view imaginary characters as copyrightable in their own

right.2 Yet whichever approach is taken, copyright finds itself in the difficult position of

determining a number of thorny issues: what is a character—must it be envisioned as hu-

manoid, composed of biologic tissue, or, indeed, possessing a personality? Can we construct

a hierarchy of character whereby some protagonists might be more worthy of protection

than others? And does literary analysis provide any assistance in sorting out the way law

winds its way through the murky, boundary-crossing rendering of persona as literature—

and, ultimately, as law?

The United States law of character copyright has been in disorder for nearly seventy

years. Critics describe it as “muddled,” “quixotic” (to borrow a term from a rather famous

protagonist), and “riddled with uncertainty and inconsistency.”3 Courts have been divided

between two major tests deployed to determine whether a fictional character may receive

copyright protection. The Ninth Circuit has relied upon the “Sam Spade Test,” named be-

cause the initial case involved Dashiell Hammett’s protagonist, under which a character is

entitled to copyright protection if “the character really constitutes the story being told”

whereas no protection is afforded “if the character is only the chessman in the game of

telling the story.”4 An alternative analysis, sometimes termed the “especially distinctive” or

“sufficiently delineated” test, created by the Second Circuit, was articulated by Judge

Learned Hand in Nichols v. Universal Pictures Corp.5 According to this opinion, characters,

1 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2014) (http://www.copyright.gov/comp/comp-index.html). Some commentators have recommended an amendment of the Copyright Act to include a subject matter category specifically for fictional characters. David B. Feldman, Finding a Home for Fictional Characters: A Proposed Change in Copyright Protection, 78 Calif. L. Rev. 687 (1990).

2 P.L.A. 2687/92 Geva v. Walt Disney Co., 48(1) P.D. 251 (1993).

3 Zahr K. Said, Fixing Copyright in Characters: Literary Perspectives on a Legal Problem, 35 Cardozo L. Rev. 769, 772 (2013); Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Conn. L. Rev. 921, 926 (2009); Francis M. Nevins, Jr., Copyright + Character = Catastrophe, 39 J. Copyright Soc’y 303 (1992). For alternative methods of protection, see Kenneth E. Spahn, The Legal Protection of Fictional Characters, 9 U. Miami Ent. & Sports L. Rev. 331 (1992).

4 Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954). The Ninth Circuit has recently adopted a three-prong test that aligns it more closely to the Second Circuit’s substantial similarity standard. To be protected, a character must: (1) have physical as well as conceptual qualities; (2) be sufficiently delineated; and (3) be especially distinctive. D.C. Comics v. Towle, 802 F.3d 1012, 1021 (9th Cir. 2015), cert. denied, 136 S. Ct. 1390 (2016). In Rice v. Fox Broad Co., 330 F.3d 1170 (9th Cir. 2003) the court deployed simultaneously the Sam Spade and Sufficiently Delineated tests.

5 45 F.2d 119, 121 (2d Cir. 1930).

Wilf — What We Talk About 53

much like plot, may “correspond . . . closely enough for infringement” and “the less devel-

oped the characters, the less they can be copyrighted; that is the penalty an author must

bear for marking them too indistinctly.”

Despite a long-standing circuit split, courts agree that a hierarchy exists among lit-

erary characters. Some protagonists are sufficiently complex to warrant protection, others

are so sketchy as to be relegated to a marginal place outside the ambit of copyright. Setting

aside the long-standing copyright doctrine of aesthetic neutrality (abstaining from what Ol-

iver Wendell Holmes, Jr. called “the dangerous undertaking” of discriminating between

different works of art), this has meant favoring certain protagonists rather than others. Why

the focus on distinguishing between characters? Protagonists serve as bridges between orig-

inal works and derivative works such as sequels. They therefore can tell us very quickly if a

work violates copyright’s right of adaptation. Using the same character is prima facie evidence

that a work is simply a derivative extension of the original. Moreover, when secondary users

deploy a character they can change how we consider them in the original work. The use in

a sequel, for example, creates a future for a protagonist that makes us rethink how they

acted in the past. Characters possess an uncanny ability to be genre-crossing—serving as

central elements in such genres as novels, dramatic works, operas, video games, films, com-

ics, and graphic novels. When such characters make the passage from a novel to a motion

picture, readers might never again visualize the original fictional work in quite the same way.

Characters are important for copyright. But two aspects of current copyright doc-

trine operate against our ability to protect only the most worthy characters. First, courts tend

to favor characters with graphic representations whose images are drawn with clear lines

and embody distinct physiognomic traits. Comic book superheroes, for example, have

found particular favor under copyright law.6 Perhaps this is because pictorial images are

easier for showing similarity. It is much more difficult to compare the psychological pos-

tures of a fictional protagonist. Pictorial representations apparently seem less fuzzy to

magistrates than literary figures whose distinctiveness might reside in interiority, dialogue,

and intricate habits of mind. “An image has the power to astonish and make you see the

world through fresh eyes,” writes French novelist Michel Houellebecq, “but only literature

can put you in touch with another human spirit with all its weaknesses and grandeurs, its

limitations and obsessions.”7 And, secondly, courts in a rather careless fashion often identify

more features as supporting copyright protection. Yet why should an author simply heaping

on additional external or inner characteristics—height, hair color, verbal tics, temperament,

odd quirks, and a host of other traits from a menu of possible protagonist attributes—make

a character any stronger? Might not the most compelling fictional characters be elusive?

6 Warner Bros. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), applying the Sam Spade test, explains the privileging of comic illustrations: “[W]hile many literary characters may embody little more than an unprotected idea, a comic book character, which has physical as well as conceptual qualities is more likely to contain some unique elements of expression.”

7 Michel Houellebecq, Submission 4-5 (Lorin Stein trans., 2016).

54 Critical Analysis of Law 7:1 (2020)

A better case might be made for literary depictions being more worthy of copyright’s

favor than graphic images. Words can draw out a character more effectively than a visual

depiction. The novel is the genre of the backstory, theatrical drama exposes the way a char-

acter interacts with others so that interpersonal exchanges transform the dramatis non-

personae into multidimensional characters. Literary protagonists carry plots on their backs

like a band of hardy Sherpas. But they are also constituted through encounters with anom-

alous situations, the upending of their lives, chimeric psychological postures, a sense of

hybridity—which Homi Bhabha believes creates cultural complexity much as sand prompts

oysters to form pearls, and, above all, by a sense of past.

This essay seeks to pose art critic W.J.T. Mitchell’s seminal query: what do pictures

want? But, instead, it asks: what do fictional characters want—what are their desires, appe-

tites, animating qualities that make them akin to humans even if they are composed of ink

and pulp, words and more words, rather than the usual biological ingredients of blood and

tissue?8 It contends that every character is born in loneliness. Doomed to emerge from the

mind of an author and existing in fixed tangible form separated from their author’s fluid

imagination, protagonists seek to assuage their terrible solitude. Two aspects of a character

provide a means of surmounting the isolation of fixation: first, a backstory with a complex

past—a genealogy, a situating in place and time, and an emerging sense of a personality

constructing by its interactions; and, secondly, the encounter with other characters—what

I call entourage—the dense network of other characters with their own desires and pur-

poses. Often the most compelling characters constitute precarious identities that demand

support from authors and readers.9 Those protagonists who successfully elicit such largesse

are especially worthy of copyright protection.

I hope to draw upon the continuing conversation about the nature of character in

the humanities to construct a more sophisticated way to think about character itself. The

argument is deceptively simple: characters want to be human. Critical to the intervention of

crafting a reinvigorated standard for copyright protection is to determine what precisely it

means to be human: to experience an evolution in perception, to interact with other humans

in such puzzling phenomena as eros and vengeance, to encompass a sufficiently complex

interiority, and, above all, to have a past. In short, a character consists of the desire for a

history and a social network.

This essay consists of two interlocking parts. The first section deploys the manga

character Annlee as a point of departure. After the conclusion of a major collective art

project utilizing Annlee’s graphic image, the artists who owned the copyright returned the

legal rights to the anime figure herself through constructing a trust. This remarkable legal

maneuver might well be the first time a fictional character herself has claimed rights. No

further use of the image would be permitted. What kind of character is Annlee? Near the

8 W.J.T. Mitchell, What Do Pictures Want? The Lives and Loves of Images (2006).

9 Oliver Asselin et al., Precarious Visualities: New Perspectives on Identification in Contemporary Art and Visual Culture 1-20 (1988). Christine Ross’s excellent introduction underscores the importance of destabilized identities in the visual arts.

Wilf — What We Talk About 55

beginning of her creation, she was neither sufficiently well-delineated nor the centerpiece

of a story—and therefore incapable of receiving character copyright protection beyond

simply her likeness. How does this modest figure, composed of nothing more than ink and

the untouched gaps between markings, acquire a sense of character? This section of the

essay analyzes Annlee’s close—but ultimately unsatisfying—brush with humanity. It con-

cludes with my probing the boundaries of character development by embarking on a

performative art project of my own, a form of humanities empiricism, where through

graphic art and prose I attempt to infringe Annlee’s copyright in order to test the limits of

Annlee’s claims to protection.

Examining the existing modes of protecting character under copyright, the second

section critiques their underpinnings in literary theory. Copyright protection of fictional

characters was an invention of Judge Learned Hand in a 1930 case, Nichols v. Universal Pic-

tures. Hand’s opinion drew heavily upon the literary analysis of the well-known British

novelist E.M. Forster, published three years earlier in 1927. The Second Circuit’s “suffi-

ciently delineated” test is a legal embodiment of Forster’s argument that characters must be

well-rounded. Forster’s focus on the complexity of character was very much part of a post-

World War I literary world where the most important genre was the novel. Novels often

associated irony with a well-developed persona, considering characters as mansions com-

posed of many rooms. By contrast, the Ninth Circuit’s Sam Spade test, measuring the

significance of a character by whether it is the story being told, is heavily cinematographic.

It sees character as the centerpiece of a narrative much as in a biographic picture or biopic.

Indeed, the Ninth Circuit’s decision, set forth by what Judge Alex Kozinski would later call

the court of the Hollywood Circuit, essentially asked whether the character’s challenges and

the successful overcoming of those challenges constitute a story in itself. The biopic as a

genre was said to have reached its apotheosis in the late 1950s.10

How might a copyright doctrine shaped by contemporary digital reproduction be

different than those coming of age in the halcyon days of the novel or classic studio film?

And do new approaches to literary criticism alter the way we conceive of character? Well-

rounded characters and focal-point characters (for that is how we might summarize the

circuit split) both presume an outsider who is judging the degree to which the fictional char-

acter is important—and making that the yardstick for whether copyright grants protection

to a particular literary cipher. This article will turn that conception on its head. It suggests

that we need to ask: what does this character want? The character might compel through its

neediness, its privation in terms of a backstory, its meager convivial milieu, or its lack of a

winding interior labyrinth. Indeed, the very flatness of the character might be its distinctive

posture in a literary work. Drawing on the important recent literary criticism of Marta

Figlerowicz and the guidance of the anime figure Annlee—who accompanies us through

the netherworld of disadvantaged characters—this article reminds us that even a sad pup-

pet, a shadowy specter, longs for a human soul.

10 George F. Custen, Bio/Pics: How Hollywood Constructed Public History 1-31 (1992).

56 Critical Analysis of Law 7:1 (2020)

I. Mojo in Manga

Annlee was sold at a tender age to a pair of strangers. Pierre Huyghe and Philippe Parreno

bought the rights for an eleven year-old manga character from a commercial Japanese ani-

mation house which specialized in developing images for cartoons, market advertising, and

video games. Her copyright cost a mere $428. There was nothing special about Annlee. In

fact, she looked like someone who could slip into a crowd of anime without eliciting notice.

At the time of her sale, Annlee was an open-eyed, slight, pre-pubescent girl with crinkly

pencil-thin eyebrows and lips [Figure 1]. Peeking out from a mop of faintly blueish hair was

a single elfin pointed ear. Her head is directed downwards, almost as an act of submission.

She is not a sexy anime, a superhero in waiting, or the kind of magical protagonist you

identify with when you want to escape the confines of an all-too-ordinary life. She is not an

astonishingly beautiful anime like the ice maid Yukina whose heart—so unlike her kin—is

filled with love and whose tears instantaneously congeal into pearls. Annlee is simply an-

other waif lost in her manga universe.

Figure 1. Original Purchased.

It was precisely this generic, undistinguished quality that appealed to Huyghe and

Parreno. Given her undifferentiated appearance, Annlee was destined to vanish as a usable

image rather quickly. She certainly would not have survived long in a medieval caricature-

eats-caricature fantasy world where deft swordsmanship and raw courage are necessities.

Huyghe and Parreno sought to appropriate the character, bringing her to life so that she

might be “rescued from extinction.”11 Yet Huyghe had his own artistic agenda. He stated

his goal rather simply: “[W]e wanted to free a character from the fiction market.”12 Accord-

ing to Parreno, “We looked for a character and we found this one. A character without a

name, a two-dimensional image . . . a character without a biography and without qualities,

11 Tate Modern, No Ghost Just a Shell Exhibition Description (2006); Deel 2, Van 9, Inv. m. 289 (Van Abbemuseum Archives).

12 Pierre Huyghe & Philippe Parreno, No Ghost Just a Shell 15 (2003).

Wilf — What We Talk About 57

very cheap, which had that melancholic look, as if were conscious of the fact that its capacity

to survive stories was very limited.”13

Annlee’s generic features were no accident. She was “industrially developed for

merchandising and other commercial purposes [and therefore] can be understood as a sign,

an adorable yet blank signifier—indeed a perfect vehicle for the global circulation of cultural

meanings, whether or not mediated by narrative form.”14 Annlee nonetheless already had

the kernel of a character. She was female—even if Huyghe and Parreno envisioned her as

stripped of gender.15 And there was something of a persona concealed inside of her insofar

as their choice of Annlee was motivated by the perceived “melancholy in the image.”16

Altering the original purchased drawing, Huyghe and Parreno provided Annlee with an

artistic nip and tuck. Her eyes became slanted and stripped of pupils—accentuating her

emptiness, her nose less button-like, and her lips stepped out beyond the thin line of the

original anime figure. Annlee remained recognizable, even if looking a bit more alien [Figure

2].

Figure 2. Richard Phillips Annlee (2002) showing version created

by Huyghe & Parreno holding original image.

The idea was to create a collaborative artistic project around Annlee’s likeness. She

would be rendered in different media by a number of different artists, provided with a

variety of identities, and, ultimately, her copyright would be placed in a trust belonging to

Annlee herself. Annlee would be “liberated from ownership.”17 The Annlee exhibit was

intended as an inquiry into the meaning of artistic authorship—and it entailed the deploy-

ment of legalities as much as paint, putty, various metals, celluloid, and the other materials

13 Id. For a political reading of the project, see Marc James Léger, The Ghost Is a Shell, 91 ETC 16 (2010-2011).

14 Jiwon Ahn, Animated Subjects: Globalization, Media, and East Asian Cultural Imaginaries 145-47 (2007) (unpublished Ph.D. dissertation, University of Southern California).

15 Huyghe & Parreno, supra note 12, at 16. See Parreno’s contribution to the project, Anywhere Out of the World (2000) (https://www.youtube.com/watch?v=DvS3jKzqYhE).

16 Huyghe & Parreno, supra note 12, at 16.

17 Tate Modern, No Ghost Exhibition; Leif Dahlberg, Annlee or Transposition as Artistic Device, in Transpositions: Aesthetico-Epistemic Operators in Artistic Research 97 (Michael Schwab ed., 2018).

58 Critical Analysis of Law 7:1 (2020)

commonly found in artist studios. Instead of authorship creating a material form that ulti-

mately would be copyrighted, the artistic production would be self-consciously non-

definitive and serve as a catalyst for the next work.18 Eventually, the copyright would belong

to Annlee herself. What is of particular interest here is that law’s abstractions and art’s ab-

stractions are intertwined throughout the fashioning of Annlee. Such conceptual art poses

a salient question for copyright. What might the negative space surrounding Annlee’s image

entailing artistic authority, legal rights, and the relational network of creators tell us about

the nature of character itself?

A. Of Ghosts and Shells

Naming the Annlee exhibit No Ghost, Just a Shell was intended as a gesture towards

the Japanese manga franchise launched in 1989 entitled The Ghost in the Shell about a fictional

counter-cyber-terrorist organization. In its stories, Public Security Section 9, as the organi-

zation is called, searches for a rogue operative called the Puppet Master. The Puppet Master

is a “ghost hacker” capable of infiltrating and seizing control of the cybernetic components

of human beings. He plants in them false memories (“ghosts”). Major Motoko Kusanagi,

the Section 9 member protagonist of the series played by Scarlett Johansson in the 2017

United States film adaptation, chases him as she confronts her own identity as both an

erotically charged woman and a cyborg.19 She is constructed of such a large number of cyber

augmentations that her own humanity is brought into question. Indeed, much of the Japa-

nese series delves into the blurred, jostled complexity of the distinction between man and

machine. Yet figures from the original Japanese franchise like Major Kusanagi have as their

foundation human origins. They are, in this sense, ghosts of a previous self. By contrast,

Annlee was conceived of as simply a shell—a vessel for the ideas, aspirations, and per-

formative desires of those who contribute to her (re)-creation.

Between 1999 and 2002, Huyghe and Parreno embarked on the undertaking of

shaping Annlee’s identity. Asking other artists to join the project, Huyghe and Parreno in-

tended to experiment with how collective creation might contribute to the erasure of

authorship. Annlee was rendered as a static computer image that could be shared as an

open-source freeware character. Huyghe described Annlee as “a sign around which a com-

munity has established itself . . . . Unlike a log, it’s a fragile sign without autonomy; it has

that ability to become plural and complex.”20 Huyghe and Parreno understood romantic

notions of individual authorship as emerging only in the nineteenth century. This

18 Hans Ulrich Obrist on the Historic Import of AnnLee, Pierre Huyghe and Philipe Parreno’s Self-Aware Manga Creation (https://www.artspace.com/magazine/art_101/book_report/no-ghost-just-a-shell-phaidon -53070).

19 The United States film is a remake of a 1995 Japanese motion picture by the same name directed by Mamoru Oshii.

20 Huyghe & Parreno, supra note 12, at 17.

Wilf — What We Talk About 59

conception, shared by a generation of copyright scholars, led them to believe that there was

a pre-modern model of collective artistic endeavor.21

The idea was to challenge copyright at the very moment of production. In Parreno’s

words: “Pourquoi le libéralisme a-t-il besoin de cette célébration des auteurs à travers le copyright?”22 They

argued for resurfacing an eighteenth-century artistic tradition where multiple artists worked

on a single canvas.23 Parreno called this an “aesthetic of alliances.”24 Yet their experiment

engendered a fragile alliance at best. The objects produced share little relationship to one

another.25 In fact, the very collective nature of the enterprise might have prevented artists

from imprinting Annlee with a truly human character. Huyghe and Parreno invited a num-

ber of other internationally recognized artists, including François Curlet, Liam Gillick,

Dominique Gonzalez-Foerster, Mehdi Belhaj-Kacem, Melik Olanian, and Rirkrit Tiravan-

ija. It was an international collaboration—which limited the interaction of the artists in the

course of production. Eighteen different artists produced twenty-eight independent

works.26 Their project, entitled “No Ghost Just a Shell,” included a potpourri of artistic

genres—eight animation videos, sculpture, painting, sound, installation works, prints, and

performance art.27

Annlee works were exhibited in nearly twenty-five locations mostly in Europe,

though in the United States and Japan as well—and not always as a united collection of

shared works.28 No attempt was made to bind together the separate works rendered in a

variety of materialities by deploying the copyright doctrine of the compilation—where a

copyright exists in the arrangement as well as individual underlying expression. Indeed, the

collaborating artists were simply furnished with Annlee’s image without any kind of licens-

ing agreement. Copyright law, which has the power to connect disparate works, was

sidelined in the making of the project’s objects. As a result, the idea of the collective re-

mained a cluster of fragmented artistic imaginaries. Huyghe’s videographic work One Million

21 There is a vast literature on romantic authorship in copyright. Martha Woodmansee’s “On the Author Effect: Recovering Collectivity” provides a fine introduction to the subject. The Construction of Authorship: Textual Appropriation in Law and Literature 1 (Martha Woodmansee & Peter Jaszi eds., 1984).

22 Annick Rivoiore, “Produire une idée à partir de l'image”: L’artiste Philippe Parreno explique son travail autour d’Ann Lee, icône 3D (http://www.liberation.fr/week-end/2001/07/07/produire-une-idee-a-partir-de-l-image_370920) (“Why does liberalism need this celebration of authorship through copyright?”).

23 Philippe Parreno interview with Andrea K. Scott, Artforum (April 23, 2001), https://web. archive.org/web/20091005051806/http://www.artforum.com/index.php?pn=interview&id=94.

24 no ghost just a shell (http://www.mmparis.com/noghost.html).

25 Alexandra Lucas, Donner vie à un personage imaginaire: Annlee dans No Ghost Just a Shell (1999-2002)—Projet initié par Pierre Huyghe et Philippe Parreno (master’s thesis, Histoire de l’art, Université de François Rabelais, 2007).

26 Netherlands Media Art Institute, Call for New Annlee Art Works: NIMk Wants Your Interpretation of the Annlee Project! (http://www.nimk.nl/eng/call-for-new-annlee-art-works).

27 Chrissie Isles et al., Dreamlands: Immersive Cinema and Art 1905-2016, at 125 (2016).

28 Vivian Van Saaze, Installation Art and the Museum: Presentation and Conservation of Changing Artworks 151 (2013).

60 Critical Analysis of Law 7:1 (2020)

Kingdoms, for example, portrays Annlee walking through an animated mountainous moon-

scape. The terrain is rocky, pockmarked, and otherwise uninhabited. Annlee herself is an

iridescent blue outline who slowly walks, projecting the sense that she is a forlorn, eerily

spectral figure [Figure 3]. There does not appear to be any direction for her movement.

Even as a rambler Annlee remains merely a shell.29

Figure 3. Pierre Huyghe, One Million Kingdoms

Was Huyghe constructing character in One Million Kingdoms? As one critic suggested,

he drained Annlee of a world as much as he was creating one for her.30 Huyghe may have

thought of his act as opening Annlee to endless possibilities—as a shell which might be

filled rather than a ghost. Yet he provided her with nothing but ventriloquist words. There

is a mélange of phrases from Neil Armstrong’s pioneering moonwalk and Jules Verne’s

Voyage to the Center of the Earth. Annlee is a voyager, an explorer. Compelled to utter the

scripts of others, she is incapable of fabricating her own language.

Rirkrit Tiravanija’s audiovisual work accentuates Annlee’s ventriloquist objecthood.

Tiravanija depicts Annlee reading the entirety of Philip K. Dick’s canonical speculative fic-

tion novel Do Androids Dream of Electric Sheep? In this tale set in a post-apocalyptic San

Francisco, the central character, Rick Deckard, is a bounty hunter tasked with finding es-

caped Nexus-6 androids. Dick’s novel, later reworked as the Blade Runner films, serves as a

meditation on the line dividing human from android.31 The androids are bioengineered to

be virtually indistinguishable from humans, though sometimes superior in physical prowess

or psychological resilience. These Replicants, using the designation from the film version,

are implanted with memories and therefore are difficult to distinguish from human beings.

Humans have a sense of empathy while Replicants do not. The Voight-Kampff Test meas-

uring empathetic responses is deployed by characters to discriminate between human

bounty hunters, who ironically are capable of empathy, and rogue androids. Yet androids

apparently can develop empathy if they interact with people for over four years. Rachael

Rosen, Dick’s Replicant female protagonist, is programmed to be receptive to the emotions

29 Leif Dahlberg, Transpositions: Aesthetico-Epistemic Operators in Artistic Research 97-115 (2018).

30 Heather Warren-Crow, Girlhood and the Plastic Image (2014).

31 Blade Runner (Amy Coplan & David Davies eds., 2015).

Wilf — What We Talk About 61

of others—even to the point of embarking on a romance or establishing trust. What does

it mean for Annlee to read her story? Does she identify with Rosen—unlike we humans,

who view Deckard as the lead character? Might Annlee have had an opportunity to develop

her own emotional compass if only she had been given an opportunity of intermingling

with people for just a bit longer? Or, even better, if she could have been fashioned by only

a single creator rather than a miscellany of different artists?

Melik Ohanian’s Annlee depicted a figure in a deep reverie with a musical back-

ground: “The passage of time is floating dimly away/I can’t see the lines I used to think I could read

between/Perhaps my brains have turned to sand.” There is a dream—but no content to the dream.

Androids may dream of electric sheep, but we have no idea what fantasies or imaginary

worlds might beckon to Annlee late at night. Joe Scanlon’s contribution, Do It Yourself Dead

on Arrival, is equally elusive. It depicts a coffin flanked on either side by dried flowers in

vases.32 Tacked on the wall are pages of a do-it-yourself manual and a copy of the legal

document assigning her rights to a foundation upon her death. Does this suggest that

Annlee’s fragile existence is near an end? Has she constructed the terms of her own last

rites by constituting such a transitory figure in the first place?

Skin of Light, conceived by the French actress Catherine Deneuve and executed by

Huyghe and Parreno, depicts a face that is illuminated due to her fame yet looks ill at ease,

perhaps martyred by always appearing in the limelight.33 The works were so disparate and

in so many different media that the artists used a glistening white, rather bulky robot to

unify the exhibit space, and—at the same time—show two films. It followed the lines of

the carpet as it moved amid surrounding exhibits.34 The robot has ceased to function. Like

the rest of the art pieces, it was consigned to a storage facility at the conclusion of the

exhibition.

Figure 4. Image from Exhibition Catalog Shell

If the various exhibitions of Annlee failed to create unity, there is a bit more

32 Joe Scanlan, Do It Yourself Dead on Arrival, Van AbbeMuseum (2002) (https://vanabbemuseum. nl/details/collectie/?lookup%5B41%5D%5Bfilter%5D%5B0%5D=id%3AC3055).

33 Marcia Tanner, No Ghost Just a Shell, Stretcher (http://www.stretcher.org/features/no_ghost_just_a_shell/).

34 Pierre Huyghe et al., Travelling Pod, MediaBank (2003) (https://mediabank.vanabbemuseum.nl/857).

62 Critical Analysis of Law 7:1 (2020)

connection provided within the compass of the retrospective catalog, No Ghost Just a Shell,

which Huyghe and Parreno edited [Figure 4]. They wrote a poem as the introduction to

their book, an anthology of works directed towards Annlee’s image. The poem is supposed

to be composed in Annlee’s own voice. It reminds us of the thinness of her past, and,

indeed, the slender material upon which her character is made—simply a sketchy image and

a name. Like so many parts of Huyghe and Parreno’s project, it is an act of ventriloquism.

The first-person poem begins:

My name is Annlee! Annlee! You can spell it however you want! I was bought for 46000 Yen . . . Some other characters had the . . . Some other characters had the possibility of becoming a hero. They had a long psychological description, a person history, Material to produce a narration. They were really expensive when I was cheap! Designed to join any kind of story, But with no chance to survive any of them. I / was never designed to survive . . . . . . I / am / a product a product freed from the market place I was supposed to fill. Drop dead in a comic book. I will never forget. I had just a name and an ID. My name is Annlee! My name is Annlee! . . . I am an imaginary character. I am no ghost, just a shell.35

The various, largely disparate artistic renditions of Annlee failed to provide a personal back-

story. As a visual object, she remained stripped of an interior labyrinth. Annlee was generally

portrayed as a solitary figure divorced from any sort of social milieu. She was a projection

of artists. Ironically, however, all these absences accentuated her melancholic image—the

sense that Annlee’s psychic needs remained unmet. What does a character want? How

might we fill the void? Although Huyghe and Parreno conspired to keep her merely a shell,

the shift to the first-person voice suggests that Annlee was making the difficult, deeply

human transition to becoming a fictional character.

35 Huyghe & Parreno, supra note 12, at 33-35.

Wilf — What We Talk About 63

One contributor to the Huyghe and Parreno volume on Annlee created a series of

case notes as if a psychoanalyst had coaxed Annlee to his therapeutic couch. “She cannot

be just a shell”— he mused—“shells fill up.”36 This reminded the analyst of a recent voyage

he took to Kitakyshu, Japan—where he attended a symposium on what makes us human:

“The truth of the matter was there was no way you could separate Annlee from humans

because there was no way she could mean something to any chimp, ape, mouse, rabbit, or

paramecium. There was something human about her because only humans were interested

in her.”37 But this supposed inner articulation quickly circled back to artists and viewers.

Huyghe depicted Annlee among hollow craters because she—like them—represented a to-

pography of the void. “There is something about Annlee that we all relate to—this empty

feeling, waiting for someone to fill you in, waiting for something to happen. Dr. ATP had

seen it numerous times in his clinic. Annlee has become a visible symptom. Somebody drew

her to rid himself of feelings of emptiness and despair, but her image remained and the

image has now become part of the public landscape.”38

But did Huyghe, Parreno, the artists who enrolled in the project, and even the critics

who would come later work to fill that emptiness? Israeli author David Grossman describes

his relationship to his characters as one of provider. In his essay, The Desire to Be Gisella, he

recounts how he was puzzled during a reading of one of his novels that an uncle of Gisella,

a character in Grossman’s novel See Under: Love, had installed an extra pedal for her sewing

machine. He could not recall why he had added that detail until he consulted the novel and

realized he had made her legs too short to reach the existing pedals. As Grossman pointed

out, when he invents a character he wants “to know and feel and experience as many char-

acteristics and psychic arrays as possible, including things that are difficult even to name.

For example, the character’s muscle tone, both physical and emotional: the measure of vi-

tality and alertness and tautness of his or her physical and emotional being. The speed of

her thought, the rhythm of his speech, the duration of pauses between her words when she

speaks. The roughness of his skin, the touch of her hair. His favorite position, in sex and

in sleep.”39

Grossman’s familiar relationship with character, his intimate canniness, leads to

fashioning the small details that form a character’s complex composite portrait. Like many

authors, he provides vivid details of physiognomy, material objects—considering the psy-

chological as well as the physical needs of his characters. Yet for all the many collaborators

on the Annlee project we never have a sense of an evolving figure who has assumed an

identity. Huyghe called Annlee an imaginary character who “while waiting to be dropped

36 Israel Rosenfeld, Dr. Arnold T.P. West’s Thoughts on the Annlee Case, in Huyghe & Parreno, supra note 12, at 97-100.

37 Id. at 99.

38 Id. at 99-100.

39 David Grossman, The Desire to Be Gisella, in Writing in the Dark: Essays on Literature and Politics 42 (Jessica Cohen trans., 2008).

64 Critical Analysis of Law 7:1 (2020)

into a story, a theoretical life, was diverted from fictional existence.”40 Why could not

Annlee find her way back to such a fictional actuality? As portrayed by Huyghe and

Parreno’s collective, Annlee had no meaningful relationships, no backstory, no deeply

crafted interiority, and no articulated intimate grammar of needs. As a graphic representa-

tion, as a series of curved lines, she might be protectable under copyright. But not as a

literary protagonist. Beyond the line boundaries of her image, Annlee never becomes a

character.

To a large extent, Annlee’s fate was sealed at the very moment she was purchased.

Huyghe and Parreno’s story is a rescue narrative. Annlee appears as a damsel in distress, as

sleeping beauty, as Pygmalion’s ivory statue waiting to be brought to life. Such a narrative

follows a rigid gender stereotype. The female is passive and her male rescuer is empowered.

There is so much about the Huyghe and Parreno project that is misogynist and patriarchal,

Eurocentric and neo-colonial—this was, after all, a Japanese, though Western-looking, im-

age that was extracted. And significantly they exploited the depiction of a child. Artist Pedro

Vélez, who as we shall see below created a social network profile for Annlee, had her write:

“Once abducted by pimp master Pierre Huyghe and introduced into the world of Gang

Bang . . . is a miracle I’m well and A-OK in Puerto Rico.”41 Huyghe and Parreno were not

the only artists with a rescue fantasy.

B. The Legal Making of a Shell

During the late 1990s, Huyghe increasingly turned his attention to the intersection be-

tween copyright and art. In 1996, a collaboration with Philippe Parreno and photographer

Anna Sanders yielded a series of photographs where there is no picture of a fictional char-

acter. She only exists in bits and pieces through selected texts and illustrations—a “liaison”

of scattered expression.42 These same artists produced a film, Blanche-Neige Lucie (1997) de-

picting the struggle of vocalist Lucie Dolène, the melodic voice of Disney’s Snow White,

for legal control of her contribution to the motion picture.43 Dubbing in French is doublage—

and certainly the relationship between the animated princess and the voice is one of inter-

twining personae. Huyghe had an intriguing approach to Dolène’s legal claim for attribution

and royalties. She had shared her voice with an imaginary character, and the character had

failed to keep its promised (was Dolène double-crossed?). Yet in the end, Dolène won her

lawsuit and like Snow White herself she was brought back to life.44 A second Huyghe film,

The Third Memory (2000), sought to sort out the complex relationship between the real John

40 Pierre Huyghe, Two Minutes Out of Time, Purple Diary (2000) (http://purple.fr/television/extract-from-two-minutes-out-of-time-2000/).

41 Warren-Crow, supra note 30, at 81.

42 Emma Lavigne et al., Pierre Huyghe: A Catalog 48-49 (2014).

43 Amelia Barikin, Parallel Presents: The Art of Pierre Huyghe 99-106 (2012).

44 Id. at 230 n.10.

Wilf — What We Talk About 65

Wojtowicz, a New York City bank robber, and the way he was portrayed by Al Pacino in

the Sidney Lumet movie Dog Day Afternoon (1975).45

At Huyghe and Parreno’s direction, Luc Saucier, a Paris lawyer, created a trust for

Annlee’s image. This association was empowered to take all the measures necessary to en-

force legal rights in the representation of her form.46 The artists renounced their own

intellectual property rights in Annlee and granted full title to a trust in her name for consid-

eration of one Euro.47 Only Huyghe and Parreno were identified as potential signatories for

this assignment of rights—and none of the other artists seemed to have been party to the

agreement. It identified as the objective of the trust that Annlee’s image will never again

appear (“l’image d’ANNLEE ne réapparaisse jamais”). According to the legal instrument cre-

ating the trust, “l’acquisition d’ANNLEE s’inscrit dans un projet poétique consistant à affranchir un

personage de fiction du royaume de la représentation” (the acquisition of Annlee comports with a

poetic plan intended to liberate a fictional character from the realm of representation). But

there was a proprietary thrust to the trust. One of the trust’s explicitly stated purposes was

to prevent Annlee from falling into the public domain.48

Yet is that what a character most desires—not to be assigned ownership of her

image in order to exert control over the use of her image, but to be exiled completely from

the realm of representation? The creation of the trust entailed numerous contradictions. If

the figure of Annlee is removed from circulation, are not the artists themselves the benefi-

ciaries of closing off Annlee from others? And what would happen to the material objects

created by the collective project—would they be scattered and commodified within the

domain of art galleries? The Van Abbemuseum in the Netherlands took the highly unusual

step of purchasing an entire collective exhibition. According to the terms of the contract,

the museum guaranteed “the end of the visual exploitation of a sign . . . . Annlee is with-

drawing from the realm of representation and that’s what the museum inherits.”49 But the

ambiguities of possession surely apply to real property claims as well as intellectual property.

Organizing an assemblage of artists turned Huyghe and Parreno into collectors. It was from

their legal status as owners of the tangible objects that they imposed conditions on Annlee’s

use. Parreno explained their strategy of making the character itself rights-bearing: “[W]e’re

trying to give rights to a thing, whereas copyright was invented to protect people’s inter-

ests.” And since the ultimate owner was the Van Abbemuseum, which could exhibit the

45 Pierre Huyghe, The Third Memory, Guggenheim.org (2000) (https://www.guggenheim.org/artwork/ 10460).

46 Déclaration de constitution d’une association, undated, Van Abbemuseum Archives, Deel 9, van 9 (“. . . toutes les mesures necessaires a la mise en oeuvre de l ‘interdiction de l'utilisation de l'image d'ANNLEE.”).

47 Id.

48 In an exhibition at the Tate Modern (2006), Huyghe created a series of seven neon signs underscoring his lack of copyright ownership suggesting his lack of possession over the film Modern Times and John Cage’s 4’33”.

49 Huyghe & Parreno, supra note 12, at 23. A second copy was purchased as part of the Miami Rosa and Carlos de la Cruz collection.

66 Critical Analysis of Law 7:1 (2020)

artworks whenever desired, it could hardly be said that Annlee received control of her im-

age. “The history of author’s rights moves from the king to the printer to the publisher,

Huyghe argued, then from the publisher to the author.”50 But what if the ultimate rights

holder in a capital-intoxicated art world is simply the owner who proscribes a work from

freely circulating?

It is not as if Huyghe and Parreno had an antinomian reluctance to deploy law.

According to an agreement between the artists and the Van Abbemuseum, for example, the

robot cannot be used outside the exhibit in the future.51 Indeed, the various museums ex-

hibiting the Not a Ghost, Just a Shell project deployed law as a technology for asserting

property rights. Art collector Carlos de la Cruz purchased the entire Annlee exhibition. His

donation allowing the transatlantic joint ownership of these works by the North Miami

Museum of Contemporary Art (MoCA) and London’s Tate Modern inevitably required a

complicated legal framework to secure the title for both parties.52 Paddy Johnson pointed

out the paradoxes of possession in an article entitled “Calling London! Free Ann Lee from

the Tate!” If the point of the project, he asks, is proposing “scenarios that liberate the manga

character Ann Lee from ownership, why is the Tate holding her reproduction rights hos-

tage?”53 Johnson snapped a photograph at the Tate, prompting the intervention of a

museum guard—to whom he responded, “But I’m freeing Ann Lee from her existence as

a commodity.”

Annlee’s plasticity is not simply an artifact emerging from an artistic gesture. She

shared characteristics with other plastic, ill-defined images that inhabit our digital age. Mash-

up, digital morphing, and the reconfiguration of persona as a changing array of avatars

might be seen as reinvention. But they also reflect a malleability where character might be

imposed from the outside. In our times, DarkFic and Fix-Fic destabilize character through

painting a protagonist with an ever-more-noir hue or rescuing one from an awkward ending.

Yet earlier generations also did not see character as fixed. From Pygmalion to the beautiful

yet vulnerable ingénue, plasticity has been a classic role imposed by men upon young

women. Is Annlee’s image circulating among largely male artists any different? Such images

can be “sculpted like clay and circulated like money.”54 Girlhood is a period defying fixity—

transformative, mutable, and vulnerable. It also is a time of searching: identifying parentage

(if this remains a mystery) and differentiating oneself in distinctive ways. Why deny Annlee

the opportunity to search for a selfhood beyond commodity? How can one be an anime

figure without a quest?

50 Rachael M. Wolff, We Bought a Virgin: The Issue of the Artist in No Ghost, Just a Shell, 4 Shift: Graduate J. Visual & Material Culture 6 (2011). For a particularly notable critique of the art market, see its literary depiction in Hannah Rothschild, The Improbability of Love (2016).

51 Letter 07/10/2003 Agreement of the Van AbbeMuseum and Huyghe and Parreno, Van AbbeMuseum Archives.

52 Noah Horowitz, Art and the Deal: Contemporary Art in A Global Financial Market 318 n.55 (2014).

53 Paddy Johnson, Calling London! Free Ann Lee from the Tate!, Art Fag City, Oct. 12, 2009.

54 Warren-Crow, supra note 30, at 2.

Wilf — What We Talk About 67

Huyghe and Parreno instructed their fellow artists on the Annlee project to “work

with her, in a real story, translate her capabilities into psychological traits, lend her a char-

acter, a text, a denunciation, and address to the Court a trial in her defense. Do all that you

can so that this character lives different stories and experiences so that she can act as a sign,

as a live logo.”55 Annlee was an anime open-source. Yet it was precisely these projects’

vertiginous, incoherent variations that transformed her into a shell simply filled with the

stories of others—none of her own. If the core of character is seeking to be human, then

Annlee found herself pulled in the other direction. Huyghe and Parreno altered her graphic

image prior to circulation among the project’s artists. They took away her large, plaintive,

even slightly moist eyes and replaced them with almond-shaped blank eyes without pupils.

Her skin was smoothed. Annlee looks more cyborg than human. This re-rendering had

philosophical implications as an animation that de-animates—taking the image further

afield from its humanity.

C. Death and the Maiden Revived

Annlee passed away rather dramatically at the December 2002 Art Basel Miami

Beach festival. During its inaugural night, Huyghe and Parreno presented A Smile Without a

Cat: A Celebration of Annlee’s Vanishing. Art patrons gathered on the beach to watch Annlee’s

silhouette shimmering overhead in the midst of fireworks, and then slowly vanishing [Fig-

ure 5].56 It was a Cheshire cat moment. The Lewis Carroll touch was not lost on Huyghe

and Parreno who titled this final Annlee artwork A Smile Without A Cat. “This will be her

last manifestation as her silhouette sparkles and dissipates in a series of fireworks over the

skies of Miami Beach as she is finally disappearing from the kingdom of representation.”57

While the spectacle was quite dramatic—one reviewer called it a “requiem for a mail order

bride”—the funeral was fairly modest.58 She was interred in an IKEA coffin, which may

seem fitting for a graphic image described as unremarkable and generic.59 Huyghe and

Parreno considered Annlee’s end as liberating her from representation. Their lawyer, Luc

Saucier, confirmed that the only way to unfetter Annlee was for the artists to divest them-

selves of the copyright and to bar future use.60 The real end of Annlee was the transfer of

her legal rights to a trust “ensur[ing] that the image of Annlee will never again appear

55 SFMOMA Presents No Ghost Just A Shell (https://www.sfmoma.org/press/release/sfmoma-presents-no-ghost-just-a-shell-annlee-virt/).

56 Philippe Parreno & Pierre Huyghe: A Smile Without a Cat (4 works), 2002 (https://www.artnet.com /auctions/artists/philippe-parreno-and-pierre-huyghe/a-smile-without-a-cat-4-works).

57 A Fireworks Project by Pierre Huyghe and Philippe Parreno, A Smile Without a Cat (Celebration of Annlee’s Vanishing) (http://www.transmag.org/nuevo_transmag/nuevodiseno/projects/presentacion.php? project=&codigolista=34)

58 Tanner, supra note 33.

59 Id.

60 Valeria Costa-Kostritsky, Délits d’initiés (https://www.vice.com/fr/article/avb7e8/luc-saucier-594-v4n12).

68 Critical Analysis of Law 7:1 (2020)

beyond the existing representations.”61

Figure 5. Death of Annlee Miami Beach Art Basel 2002

Animating an anime character draws upon the philosophical tradition of vitalism.62

But what happens when you take away her life? A number of artists called the killing of

Annlee an intentional homicide—and her mode of burial a disgrace. Artist Pedro Vélez

created a piece of protest art: “Ann Lee Lives!” [Figure 6]. Scrawled on a poster with a very

real-looking photograph of a young woman with shoulder length hair and a welcoming

smile was the statement “You Can’t Kill Ann Lee. She is alive and well in Puerto Rico. Go

Fuck Yourselves.”63 Vélez also established a profile for Annlee on the social media platform

Myspace depicting her as a twenty-three year old female in Puerto Rico. Yet Myspace has

undergone its own death spiral, and no one seems to have logged into Annlee’s profile and

networked with her since 2006.64 As renowned cell-death scientist Claude Ameisen in con-

versation with Pierre Huyghe remarked: “[I]t’s very hard to die when one is not alive.”65

61 Warren-Crow, supra note 30, at 79.

62 For the resurfacing of vitalism in modern French thought, see Maurizio Lazzarato, Puissance de l’Invention: La Psychologie économique de Gabriel Tarde contre le économie politique (2002).

63 Google search: pedro velez ann lee lives (https://tinyurl.com/wu7l8hr).

64 Ann Lee Lives! (http://archive.rhizome.org/anthology/hellinlambuc/www.myspace.com/annleelives).

65 Amelia Barikin, Parallel Presents: The Art of Pierre Huyghe 242 (2015).

Wilf — What We Talk About 69

Figure 6. Posthumous Annlee, Pedro Velez

In 2012, a decade after her untimely death, The Netherlands Media Art Institute

invited artists to contribute to a new Annlee exhibit entitled Yes, We’re Open. According to

what the organizers termed an “unofficial” call for art works, “The [Annlee] project was

finalized . . . with the artists definitively killing her off (including a coffin) and liberating her

from the realm of representation—as they described it—by signing over the copyrights of

the image to Annlee herself. Is this really the end? Is Annlee dead, truly free, or both?”66

Presumably without asking Annlee’s own authorization, her legal status was a usable image

to be resurrected. The Media Art Institute provided two rationales which speak to intellec-

tual property debates. First, “copyright was used explicitly to lock up an appropriated image

that has the potential to flow as freely as an open art work.” And secondly, “Annlee has

disappeared as an image, but not as an entity that can be discussed and talked about, or as

a subject for new artworks.”67 In other words, art should be unconstrained by copyright—

and if there are legal consequences, then we might consider classic fair use arguments about

new Annlee art representations a species of comment and criticism addressing the original

Annlee project.

Perhaps this is the approach taken by Romanian-born artist Mircea Cantor. Her

2004 spray paint contribution to the Netherlands exhibit (I 6M STIL7 ALIV3) shows a

red-painted Annlee with the stenciled words “I am still alive” written beneath her upper

torso [Figure 7]. Ironically, the Philadelphia Museum of Art, which currently owns the art

piece, has posted on its website a copy with a legal notice superimposed: “A larger image is

unavailable for this object due to copyright, trademark, or related rights.”68 Artist Tino

Sehgal at the 2011 Manchester International Festival had an eleven-year-old girl circulate

among the audience playing Annlee.69 Was Annlee truly miraculously resurrected like

66 Netherlands Media Art Institute, supra note 26.

67 Id.

68 Mircea Cantor, 6M STIL7 ALIV3 (http://www.philamuseum.org/collections/permanent/300108.html ?mulR=25137880%7C2)

69 Tino Seghal Reanimates Manga Character at Frieze, Phaidon (http://www.phaidon.com/agenda/art /articles/2013/may/08/tino-sehgal-reanimates-manga-character-at-frieze/); David Searle, Through the Trap Door: Tino Sehgal’s Mesmerising Mind Maze, Guardian, Nov. 16, 2016 (https://www.theguardian.com/ artanddesign/2016/nov/16/tino-sehgal-carte-blanche-mind-bending-exhibition-palais-de-tokyo-paris).

70 Critical Analysis of Law 7:1 (2020)

Lazarus from the dead? When casting, Sehgal looked for a mix of “a certain fragility and

strength at the same time.”70 Since this was not an imagistic reproduction and she never

developed a literary persona as a character, it may well be that Sehgal had found what he

called a legal loophole around the trust.71 Annlee may have lacked a sense of lineage, a

backstory, a romantic entanglement, or the opportunity to define her own interiority. But

death made her ever so human. Animals vanish. Humans—and their fictional protago-

nists—might be the subject of funerary rituals, mourning, denial of death, and resurrection.

She was missed by others. The pathos of bereavement rendered legible what Annlee could

have sought from artists—to be a full-fledged character.

Figure 7. Mercea Cantor, I 6M STIL7 ALIV3, c. 2004, Philadelphia Art Museum

If Vélez, Cantor, and Sehgal can appropriate Annlee for their own art against the

purposes expressed in the trust, then any artist might deploy this representation for his or

her own purposes. Marcia Tanner, an art critic, who identified Annlee as a signification for

exploited women and colonial subalterns, expressed her anxiety about what would happen

to her character after death. She wondered “if Annlee will become a cult figure whose legally

protected image and persona will be pirated by who knows whom and for what purposes,

now that she’s gone?”72

I am that person. My revivification of Annlee was inspired by Richard Phillips’s

contribution to the project which depicted her displaying the original image of Annlee when

it was purchased from the Japanese anime clearing house before it was modified by Huyghe

and Parreno, Annlee (2002, Figure 2).73 I wanted to return to the original Annlee. Yet the

Annlee I hope to bring to life was not the shell, not the material object of ventriloquism

(reading Philip K. Dick), not simply parachuted onto an extraterrestrial landscape at a vid-

eographer’s whim, not circulated like a Bitcoin among a clannish band of artists, and not

70 Thiery Somers et al., A Year at the Stedelijk 8/12: Ann Lee—The Casting of a Manga Character, 200% (http://200-percent.com/tino-sehgal-2/).

71 Id.

72 Tanner, supra note 33.

73 Richard Phillips, Annlee (2002) (http://ensembles.mhka.be/items/9419/assets/20333).

Wilf — What We Talk About 71

simply a staged representation. I was interested in the ghost rather than the shell. A ghost

has a prior existence—often tragic—before turning spectral. Ghosts were once human,

once had a past until they were torn from a corporeal existence. Ghosts haunt as an expres-

sion of their humanity. Following David Grossman’s dictum, I wanted to try and shift her

from a mere, rather nondescript image to a well-rounded character by giving her what she

needs most: a history and an entourage.

Figure 8. Steven Wilf, Annlee: Starry Night, c. 201874

My first attempt was to create an image that reflected Annlee’s own confinement.

Using GoArt, a graphic platform, I made a version of Annlee’s portrait that fits within

Vincent Van Gogh’s Starry Night, called Annlee: Starry Night (2018, Figure 8). Dating from

his 1889 confinement in the asylum at Saint-Rémy-de-Provence, the painting reflects what

critic Meyer Schapiro refers to as a visionary religious mood.75 My intent was to express the

idea that Annlee was also imprisoned—by her material image. But within her she had the

human need to become part of an expansive world. Was my Annlee’s Starry Night a work of

fair use commenting on Huyghe and Parreno’s project? And if so, how was my rendition

any different from those of others who might see themselves as commenting on No Ghost,

Just a Shell ?

74 Annlee has been confined by artists much like Van Gogh in his asylum—contained in a narrow window or picture frame as an instrument of others. She nevertheless has the capacity to envision the possibility of a sweeping starscape.

75 Meyer Schapiro, Vincent Van Gogh 110 (1950).

72 Critical Analysis of Law 7:1 (2020)

Figure 9. Steven Wilf, No Shell, Just a Ghost, c. 201876

I followed my expression of dismay at Annlee’s confinement in the original Huyghe

and Parreno project with a critique of its artistic afterlife. Mircea Cantor sought to deny

their placing of the copyrighted image in trust with her poster depicting Annlee with the

stenciled claim asserting “I am still alive.” But did Cantor indeed breathe life into the inert

image? Or was her contribution to Annlee’s Nachleben simply a me-too claim for her partic-

ipation in the project? Cantor turned Annlee yet again into a shell, and therefore I

transformed her artwork into my own spectral image, a graphic manifesto calling for her to

become a more human apparition which I entitled No Shell, Just a Ghost (2018, Figure 9). All

art is commentary. In copyright terms, my Van Gogh version was a derivative work and a

violation of the right of adaptation. No Shell, Just a Ghost challenged the copyrights of Huy-

ghe, Parreno, and Cantor. But did I own any rights in the original elements of my artwork?

Was simply situating Annlee in Van Gogh’s imagined starscape and running software suf-

ficiently innovative to create an original work of authorship?

In any event, I had simply acted like the artists in Huyghe and Parreno’s collective:

placing her within settings or situations that reflect the artist. My intent was to express

Annlee’s intense loneliness through borrowing her melancholy anime representation, Van

Gogh’s narrow asylum window, and the Creator’s vast glittering sky. Yet I had failed to help

transform Annlee into a character. I needed to ask the questions: what does this character

want? How can I provide her a backstory and companionship? In response to these ques-

tions, I wrote a tale about her quest for identity. It depicts how she uncovers a surprising

anime genealogy, and the challenges she had to overcome while crafting a sense of evolving

interiority while she encounters obstacles in the midst of her search. Annlee needed an

76 Mircea Cantor’s I 6M STIL7 ALIV3, supra note 68, appropriates without authorization Huyghe and Parreno’s image of Annlee. But instead of bringing her to life by adding depth to the character, it simply asserts her ability to haunt, remaining an undeveloped sign of a possessed image that was not allowed to disappear.

Wilf — What We Talk About 73

older, more experienced storytelling character to aid her in the quest of a past. I called this

new character “the Professor.” Perhaps, like Huyghe and Parreno, I could not resist em-

bedding a bit of myself in this story. And like Sehgal, I might have found a legal loophole.

Since Annlee had never become sufficiently delineated as a fictional character and was never

the story being told—the two classic United States circuit court tests deployed in copyright

to determine whether a character is protected—I felt confident that I could write this story

free of legal entanglements.

Figure 10. Steven Wilf, Annlee’s Quest, c. 201877

But Huyghe and Parreno had used the creation of Annlee’s legal trust as a kind of

art. Could I similarly engage in copyright infringement as performance art? Using an inter-

net freelance platform, I hired an anime artist to draw according to my specifications what

surely must be an Annlee derivative work. Annlee is situated in a mysterious terrain, a blue-

green river stretching into a bamboo forest in the background, Annlee’s Quest (2018, Figure

10). She faces a bald robed figure holding a staff and states in a firm, but plaintive voice:

“Professor, I need a history before I can become a real character.” My Annlee is based more

closely on the original anime art purchased by Huyghe and Parreno, which seemed more

human and suitable for her pursuit of a backstory. Her purple hair bangs are slightly pushed

back. She shows less child-like disregard for her appearance than she did when her sketch

was purchased by Huyghe and Parreno. Annlee has developed small breasts in my illustra-

tion. A digital artifact with plasticity, Annlee is the Lazarus of our times. Years have passed

since Huyghe and Parreno decided to withdraw her from the sphere of representation.

77 Mircea Cantor’s I 6M STIL7 ALIV3, supra note 68, appropriates without authorization Huyghe and Parreno’s image of Annlee. But instead of bringing her to life by adding depth to the character, it simply asserts her ability to haunt, remaining an undeveloped sign of a possessed image that was not allowed to disappear.

74 Critical Analysis of Law 7:1 (2020)

What happened during this intervening period? Annlee’s breasts represented for me evolu-

tion of her character: a quickening to become more human, the possibility of eros—even

of motherhood. Nothing bars protagonists from both discovering their parentage in a lit-

erary description and, as well, serving as the nurturing figure for a child figure. I dressed her

in garb suitable for exploring the fantasy manga multiverse from which she came. In this

illustration, Annlee—the most unlikely of anime survivors—enters into a quest to discover

her past.

I drafted a work-made-for-hire agreement. My performative art was one of copy-

right infringement, and I needed to assume the responsibility myself. Indeed, to heighten

my sense of risk, I posted my joint storytelling and artistic project on Kickstarter, a fund-

raising platform—therefore transforming the infringement into one conducted for

commercial purposes. I offered to potential supporters the opportunity to become stake-

holders in a story I would write from the point of view of Annlee. Such a story would

articulate longing, a sense of her unfulfilled needs. It would provide a glimpse into an inner

self. As a gift to my Kickstarter supporters, I offered a copy of Huyghe’s and Parreno’s

graphic image with a speech bubble. Annlee would speak. Through these literary and artistic

renditions, I might be violating fundamental copyright rights. I had produced derivative

works. Would Annlee’s trust launch an infringement suit?

The figure of Annlee is a sign of copyright law gone askew. A few lines, a few

curves, a touch of purple in her hair: was she a protected character? She began as an empty

cipher. But, in the end, there was something about her plaintive eyes, the trauma of being

passed from one artist to another without regard to fashioning her inner life, and even her

imprisonment in a fairytale tower of a legal trust that prompted my seeking to assist her

transformation from cipher to character. What do characters want? It is not so different

from the enquiry into what we hope copyright will want from characters.

II. Character in Its Legal Skein

Learned Hand resembled a judge chosen by central casting. With a thoughtful brow, a firm

jaw, and immense, almost animated eyebrows, Hand readily evoked trust. Even his fore-

name seemed magisterial. Beyond his imposing physical appearance, Hand was a superb

judicial rhetorician. Indeed, quotations from his decisions on the Second Circuit Court of

Appeals continue to be regularly cited even when his legal analysis has not aged as well. He

studied philosophy at Harvard under William James. As an acolyte of Herbert Croly, he

assumed a public role as a spokesman for a progressive society guided by a selfless elite.

Hand regularly polished his outward performance as presented in judicial opinions, popular

essays, and public addresses.78 Given all this attention to burnishing his own image, it is not

surprising that the earliest decision protecting character within the ambit of copyright was

his 1930 opinion in Nichols v. Universal Pictures.79

78 On Learned Hand in general, see Gerald Gunther, Learned Hand: The Man and the Judge (1994).

79 Mark Rose, Authors in Court: Scenes from the Theater of Copyright 91-115 (2016).

Wilf — What We Talk About 75

Nichols involved a claim by the playwright Anne Nichols, author of a successful

comic drama, Abie’s Irish Rose, which was performed on Broadway from 1922 to 1927. Abie’s

Irish Rose portrayed the courtship of children from quarrelling Jewish and Catholic families,

the disapproval of older members of the family at the prospect of a mixed marriage, and

their ultimate reconciliation with the birth of twin children. The play was so successful that

H.L. Mencken called it “America’s third-largest industry.”80 If the leading figures were eth-

nic caricatures, that is precisely what was intended. Using comic cultural stereotypes of Jews

and Catholics, the play spoke to emergent ethnic identities in a period of mass immigra-

tion.81 For Jews, such a family drama served as a counterpoint to the image of radical Jews

widespread during the period of the Red Scare or even the racial argument that Jews were

not white. The extraordinary success of Abie’s Irish Rose inspired imitators. It formed the

basis for a film entitled The Cohens and the Kellys—and Nichols sued for copyright infringe-

ment. Both the play and the motion picture possessed similar plots with some variations in

the details of their storylines. Hand concluded that it was difficult to stake out the boundary

between general ideas—after all, the idea of opposing families was commonplace, sharing

literary kinship with Romeo and Juliet—and the particular expression protected by copyright.

In what has become known as the Hand abstraction test, he suggested that such analysis

must be fact-based, and that too little expression was taken in this instance to warrant a

finding of copyright infringement.

Hand’s landmark opinion remains influential in defining copyright infringement.

The Hand abstraction test extends protection to plot sequencing as a form of expression.

For our purposes, Nichols has a noteworthy afterlife as the first major copyright case to

address the legal protection of fictional characters. Hand links these two elements of dra-

matic production. For plays, Hand states, the inquiry “chiefly centers upon the characters

and sequence of incident.” It underscores the significance of protecting well-developed

protagonists as opposed to stock characters. Hand deviated from a holding in a major

United Kingdom decision decided around the same time, Kelly v. Cinema Houses (1933),

which denied any particular protection to fictional characters. It went so far as stating in

dicta that nothing would prevent even a well-known protagonist like Sherlock Holmes from

being appropriated by later detective writers.82 Nichols, instead, chose to distinguish between

different sorts of protagonists. If a character was too minor, too generic, or too poorly

drawn it was simply not worthy of copyright. In Nichols, Hand provides an example of what

he considered an unfixable boundary between protected and unprotected characters: “If

Twelfth Night were copyrighted, it is quite possible that a second comer might so closely

imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one

80 Ted Merwin, The Performance of Jewish Ethnicity in Anne Nichols’ “Abie’s Irish Rose,” 20 J. Am. Ethnic Hist. 3 (2001).

81 Id. at 12-13.

82 Kelly v. Cinema Houses, Ltd., [1928-35] Macg. Cop. Cas. 362, 368.

76 Critical Analysis of Law 7:1 (2020)

of his characters he cast a riotous knight who kept wassail to the discomfort of the house-

hold, or a vain and foppish steward who became amorous of his mistress.”83

For Hand and others deploying his legal test, appropriation of character served as

a kind of measuring device for whether there has been an infringement of copyright’s right

of adaptation. At the time Nichols was decided, an estimated thirty percent of all produced

plays were sued for copyright infringement.84 Such vexatious litigation could prove crippling

for dramatic productions. Character analysis provided a more solid gauge to determine if

infringement had occurred. Hand understood that character uneasily inhabited a spectrum

from expression to concept. This analysis of fictive figures clearly fit within the ambit of

Hand’s overarching concern that copyright protects expression, not ideas. When literary

critic Uri Margolin states that “characters are abstract in the sense that they do not exist in

real space and time, and are more like concepts in this regard,” then he is clearly implicating

the idea/expression dichotomy in copyright doctrine.85 Sufficient delineations slide protag-

onists in the direction of the expression end of the spectrum. They also allow for the

individuation of character to distinguish one from another—and thus maximize the number

of character types available to potential authors. Judge Augustus Hand, Learned’s cousin

on the Second Circuit, addressed this issue in the Superman versus Wonder Man copyright

case—a mashup worthy of the Marvelverse. Both superheroes leap across buildings, wear

“skintight acrobatic costume[s],” and are endowed with superhuman strength. Augustus

Hand argued that Superman was trying to establish a monopoly on the idea of a powerful

benevolent Herculean hero—which is unprotectable. But if the garb and powers could be

sufficiently delineated, this might warrant protection as copyright expression.86

A. Desperately Seeking Selfhood

Writing in Nichols, Hand was preoccupied by the problem of how to distinguish between

characters worthy of protection and those unworthy. In Nichols, Hand firmly rejects the

possibility of expert testimony about the literary significance of characters for this would

simply lead a court into a maze—“the intricacies of dramatic craftsmanship.”87 Indeed, a

later Second Circuit opinion has kept the judicial assessment particularly vague by borrow-

ing a concept from trademark, and asking simply whether an infringing character captures

the “total concept and feel.” Yet this means that Hand—and subsequent judges—have

relied upon academic criticism that has remained frozen since the late 1920s. Almost cer-

tainly, Hand was influenced by the publication just a few years earlier of E.M. Forster’s

classic essay, Aspects of the Novel (1927), which addressed this very issue. Hand often invoked

83 Nichols v. Universal Pictures, 45 F.2d 119, 121 (2d Cir. 1930).

84 Howard Barnes, Plagiarism Suits: The Uses and Abuses of Our Present Copyright Law, 7 Theater Guild Mag. 23, 23-24 (1929).

85 Uri Margolin, Character, in The Cambridge Companion to Narrative 68 (David Herman ed., 2007).

86 Detective Comics, Inc. v. Bruns Pubs., Inc., 111 F.2d 432 (1940).

87 Nichols v. Universal Pictures, 45 F.2d 119, 123 (2d Cir. 1930).

Wilf — What We Talk About 77

Forster’s motto for quiet liberalism, “two cheers for democracy,” which articulated a re-

sponse to the darkening political vista of the 1930s.88 Forster made a distinction between

flat and round characters. Flat characters are caricatures. “In their purest form, they are

constructed round a single idea or quality: when there is more than one factor in them, we

get the beginning of the curve towards the round.”89

Forster’s archetypal example of a flat character is Mrs. Micawber from David Cop-

perfield. In many ways, she, is a figure from the periphery of a constellation of Dickensian

quasi-comic personalities.90 The protagonist, David Copperfield, has a kind-hearted aunt

whose lawyer, Mr. Wickfield, employs the unctuous Uriah Heep. Working as Heep’s clerk,

Mr. Micawber is a weak-willed figure—and his wife, Mrs. Micawber, is so far removed from

the heartland of the narrative that she serves as a comic foil with her capacity for mixed-up

words. As a type, she helps her husband give rise to their own neologism: Micawberism (n.

unjustified, irresponsible optimism). Mrs. Micawber is nothing more than a caricature in-

habiting Dickens’s magic lantern: metropolitan London. In Forster’s words, “flat people

are not in themselves as big achievements as round ones, and . . . they are best when they

are comic. A serious or tragic flat character is apt be a bore.”91

Forster largely defines round characters by proffering examples. But we can follow

Forster’s lead in trying to construct (as lawyers are wont to do in all kinds of inappropriate

circumstances) a multi-factor test for round characters. Round characters should be aware,

interact well with others, be distinctive, and demonstrate psychological depth, self-reflec-

tion and what Kant might call internal purposiveness (innere Zweckmäßigkeit). Such

protagonists possess a past. They evolve over the course of time. Literary protagonists need

a name—a cipher to connect their many thoughts and actions over time. Edward O. Wilson

described novels as “pixels of history” that described lived past lives within their emotional

context.92

To a certain extent, characters are not fixed. They are enlarged by readers who con-

tribute to their elaboration. In the earliest years of the novel, it was difficult for readers to

imagine conjuring up figures with lives distinctly detached from their own and various his-

torical actors. Readers had to render them as living beings with pasts of their own, a present

of social entanglements, and a future complete with choices to be made.93 The only way

this might occur is for the reader to submerge her own self for the character’s identity to

appear. The creation of character therefore requires a remarkable re-examination of an en-

tire narrative so that a persona emerges only through elaborating a fictional protagonist’s

88 Gunther, supra note 78, at 564.

89 E.M. Forster, Aspects of the Novel 67 (1927).

90 Id. at 68.

91 Id. at 72-73.

92 Edward O. Wilson, The Origins of Creativity 39 (2017).

93 Catherine Gallagher, George Eliot: Imminent Victorian, 90 Representations 61 (2005); Yi-Ping Ong, The Art of Being: Poetics of the Novel and Existentialist Philosophy 60-63 (2018).

78 Critical Analysis of Law 7:1 (2020)

sequential encounters which only appear slowly over time. Why, then, should we not expect

character to require becoming human in order to exist?

Literary critic Alex Woloch defines character as “the intersection of an implied hu-

man personality.”94 Characters need not actually be human. Indeed, since they are simply

composed of line drawings and a splash of color in graphic works such as comic books and

through word portraits in canonical novels they never truly can be human. What they re-

quire instead is a brush of the connection to humanity. Characters seek to be human by

appropriating the human emotional vortex of personality, forging friendships and finding

lovers, framing thought as language, and asserting membership in the puzzling, ill-defined

club called the human condition. Given the fact that all protagonists lack the genetic codes

that define humanity, why deny the status of character to inanimate objects that follow

Aristotle’s definition of humankind as a speaking animal? Copyright has rendered permea-

ble the boundary between the animate and inanimate. Courts have found cars such as the

Batmobile, the cartoon characters Ben and Jerry, Disney fauna including Mickey Mouse,

Jonathan Livingston Seagull, Godzilla, figures from the Garfield comic strip, and even

E.T.—who wears his alien status on his sleeve—to be sufficiently well-defined as personae

to be human.95

To a certain extent, it might be wrong to say that authors own copyrights. Authors

are fiduciaries for characters who often emerge outside of the paper personhood revealed

by their creators. Woloch argues that characters exist in carved out character space. At times

they are eclipsed in the narrative, at times they emerge from behind a veil of other storylines

where they are obscured. But what happens when this obscuring is intentional on the part

of the author? Some writers purposely leave protagonists underdeveloped in order not to

subordinate the making of character solely to the author’s wishes—but, instead, to allow

the character to emerge as the reader furnishes what protagonists need. In this sense, the

flat character—to use Forster’s categories—has some virtues over the most rotund of

round characters. Flat protagonists are characters who have a hard time attracting and main-

taining the attention of others.96 Stereotypic and predictable, they are often disregarded by

94 Alex Woloch, The One vs. the Many: Minor Characters and the Space of the Protagonist in the Novel 13 (2003). Italics my own.

95 DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), cert. denied, 136 S. Ct. 1390 (2016) (“Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character” if it is sufficiently delineated); Halicki v. Monfort, No. CV080351PSGJTLX, 2010 WL 11508467, at *1 (C.D. Cal. Feb. 3, 2010) (remanded to district court for fact-intensive analysis to determine whether automobile Eleanor, which received film credit in Gone in Sixty Seconds, could be subject to copyright protection); Bach v. Forever Living Prod. U.S., Inc., 473 F. Supp. 2d 1127 (W.D. Wash. 2007) (identifying Jonathan Livingston Seagull as copyrightable); Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206 (C.D. Cal. 1998) (Godzilla is “a well-defined character with highly delineated consistent traits”); Warner Bros. Entm’t v. X One X Prods, 644 F.3d 584 (8th Cir. 2011) (finding cartoon characters Tom and Jerry to be protectable as characters); Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (extending copyright protection to Mickey Mouse and other Disney characters with sufficiently delineated visual and conceptual characteristics); Matthew D. Bunker & Clay Calvert, Copyright in Inanimate Characters: The Disturbing Proliferation of Microworks and the Negative Effects on Copyright and Free Expression, 21 Comm. L. & Pol’y 281 (2016).

96 Marta Figlerowicz, Flat Protagonists: A Theory of Novel Character 1-20 (2016).

Wilf — What We Talk About 79

other characters. Forster would deny such figures copyright protection. Yet Marta

Figlerowicz in a major recent work of literary criticism has argued that such protagonists

challenge readers. Rather than serving as models of roles whereby readers can envision a

lived life, they demand us to ask how we can make them human within the represented

world of the novel.

B. Flat Characters, Concave Characters

The two major circuit tests determining whether a character is deemed protectable solely

focus upon the authorial imagination. It is the author who makes the character well-rounded

(the Second Circuit’s Sufficiently Delineated test) or places a figure at the epicenter of a

narrative (the Ninth Circuit’s Sam Spade test). It is the author who in Darwinian fashion

will decide what characters will survive as central characters and who is simply an instru-

ment “to swell a progress, start a scene or two,” afford an instance of comic relief, or even

serve merely as a distraction. These perplexing standards have led us into a variety of legal

sand traps. How much delineation is sufficient? Protagonists deploy various material ob-

jects—Sherlock Holmes has his Meerschaum pipe in his later incarnations and Harry Potter

has a holly wand with a Phoenix feather at its core. Dr. Who—all thirteen incarnations—

are so very different. He/she simply inhabits a universe where a poorly repaired London

call-box is the standard mode of transportation. Such objects, of course, make the character

more akin to an illustration rather than emphasizing interiority.

At other times, it is the surrounding entourage of a supporting cast that lends a

protagonist depth. James Bond would be nothing but an empty tuxedo without Q, Miss

Moneypenny, those “Bond Girls” with their frightfully embarrassing names, and a host of

villains from Dr. Julius No to Auric Goldfinger. Indeed, Bond himself—who displays scant

remorse over his numerous assassinations and emotionally detached sexual assignations—

possesses little of the interiority seen in more robust characters. A court found that James

Bond was simply composed of a number of unprotectable elements: his suave manner,

license to kill, and martinis that were shaken, not stirred. But these combined into a distinc-

tive enough protagonist to warrant protection.97 Bond, in this sense, was what copyright

calls a compilation. While the elements were all fairly commonplace, Bond’s distinctiveness

as a character resides in their being gathered together in one figure. Rosencrantz and Guil-

denstern were dead until Tom Stoppard resurrected them as leading men in his tragicomedy.

Protagonists are both delineated and inhabit the heartland of a story by means of an external

milieu. They need support from the outside to make them full-fledged characters.

Some characters are born round. Many characters make a slow progress until their

curves begin to show.98 For other protagonists, however, their very flatness is their essence.

In Brechtian drama this is called Haltung—the dramatis personae are not really characters but

97 Metro-Goldwyn Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995).

98 E.M. Forster writes: “In their purest form, they [flat characters] are constructed round a single idea or quality: when there is more than one factor in them, we get the beginning of the curve towards the round.” Forster, supra note 86, at 67.

80 Critical Analysis of Law 7:1 (2020)

figures in a play who are defined by their postures towards different interactions. Overly

well-drawn characters would weight-down this weathervane shifting of attitudes. The flat

protagonist has become a feature of post-modern literature. In David Foster Wallace’s Infi-

nite Jest (1996), for example, John “No Relation” Wayne so lacks a voice-of-his-own that all

of the statements about him are made by other characters. Jonathan Lethem’s characters

often lose their memory. Jonathan Lethem’s protagonist in Chronic City (2009), Chase In-

steadman, cannot recall that his girlfriend is stranded on an orbital space station endlessly

circling the earth. Haruki Murakami’s Hard-Boiled Wonderland and the End of the World (1985)

is filled with nameless fictional characters who have somehow misplaced their identities.

Such flatness is purposeful. These protagonists are asking, perhaps even pleading with the

reader, to provide them with what they are missing.

A kind of Flatland multiverse is inhabited with a variety of characters: round char-

acters, those evolving towards a bit of curvature, flat characters, and what I will call concave

characters. Concave characters are stereotypes—racial, gender, or ethnic embodiments—

or, perhaps, even typecasts of individuals. No doubt such protagonists serve cultural func-

tions.99 Stereotypes help make sense of a chaotic world. They serve to slip the particularities

of a character into predictable generalizations. Our own sense of self-identity might be me-

diated by considering a counterpoint. Nevertheless, through their othering they do not

demand that readers contemplate what they want. They remain impervious to considerations

of interior psychological worlds. Typecasting, rather, embraces the banal and cliché—and

therefore, in copyright terms, typecast protagonists function as somewhat withered con-

cepts. Often born of xenophobia, colonialism or patriarchy, stereotypes might be

considered anti-character.100 They may be well delineated, the centerpiece of a story, and

yet such conventional figures should be denied protection because in the end all stereotypes

drain the subject of its own significance.

III. The Fascination of the Void

In Huyghe’s video about Annlee’s voyage to a desolate moonscape, One Million Kingdoms,

Annlee utters a monologue. It is almost prophetic, spoken in her eerie, not-quite-human

voice: “‘The fascination of the void took hold of me. I felt my centre of gravity moving,

and vertigo rising to my head like intoxication. There is nothing more powerful than this

attraction of the abyss.’”101 Annlee views herself as an abyss. She wants to be filled. Yet the

ventriloquism of a cadre of artists and even her own trust controlling the copyright of her

character cannot bring her closer to being a more full-bodied figure. Radiating “the spooky

99 Mrinalini Chakravorty, In Stereotype: South Asia in the Global Literary Imaginary 19 (2014). For a consideration of the generic feature of stereotypes under copyright, see Jasmine Abdel-Khalik, Scènes à Faire as Identity Trait Stereotyping, 2 Bus. Entrepreneurship & Tax L. Rev. 241 (2018).

100 See, e.g., Patricia J. Williams’s discussion of the George Lucas’s Star Wars character Jar Jar Binks, whose Blackface Minstrel overtones suggest that the character is simply a prop drawing on past unsavory racial stereotypes. Patricia J. Williams, Racial Ventriloquism, The Nation, June 17, 1999.

101 Huyghe & Parreno, supra note 12, at 144-45.

Wilf — What We Talk About 81

aura of a lifeless thing come to life, [she appears as] a walking talking living doll, a mutant

computer. Nowhere do we have the sense that she is waiting to be solidified by the legal

contract that will make Annlee the holder of her own copyright.”102 One can only become

a character by intermingling with caring authors and readers.

In truth, I am unsure whether my images, my performance art legalism, and my

storytelling have made Annlee any more complete. The muddle of current character copy-

right is based on old media—the written word and film—and grounded in Jazz Age literary

criticism. No doubt, as suggested, we must turn to new voices in literary theory and the

humanities to understand the entanglements of character—and include flat, post-modern

protagonists within the ambit of copyright protection while distancing ourselves from stereo-

types that are a departure from full-bodied personhood. Characters that tug at us are better

characters. It does not matter that they already have been given various fine points by their

authors. A character that asks something from us, like the anime waif Annlee, is a character

worth protecting—even if at first glance she appears unduly flat. This sort of protagonist

challenges us to provide. Does she need a backstory, an entourage of objects, or the con-

viviality of other figures for the purposes of both erotic and platonic companionship? Must

we imagine an intricate past in order to understand her present? And, quite simply, does

she force us to try puzzling out: what does a character want?

Perhaps, in the end, genuine protagonists are those that prompt us to respond. The

concluding fragment of Annlee’s lunar soliloquy speaks to this most fundamental of needs:

“‘For a moment I was afraid that their words might be my own, brought back to me by an

echo. I listened once more, and this time I clearly heard my name thrown through the

space.’”103

Characters need a reader who can utter their names.

102 Jan Verwoert, Copyright, Ghosts, and Commodity Fetishism, in Huyghe & Parreno, supra note 12, at 187.

103 Huyghe & Parreno, supra note 12, at 145.