Communication Currents

Copyright law provides artists and inventors with exclusive but limited-term rights to exploit their creations commercially. Dating back to 1884, the courts have entertained two competing ideas about ownership and its relation to authorship. On the one hand, originality is a claim to ownership in the work, meaning that if a product bears the imprint of its author’s personality, it must be recognized as originating with that person. On the other hand, an author is simply recognized as an originator and an originator as an author, meaning that the product can also contain zero degree of authorial personality and still be proprietarily owned. These dual meanings have contributed to the displacement of the author by the corporation, which needs not imbue products with personality to claim authorship over them.

In order to understand why the courts would grant corporations authorial status, we must begin to take corporate rhetoric seriously. Corporations have historically sought to establish managerial stewardship as central to their authorial rights. The forms of authority corporations’ claim align with pre-Romantic conceptualizations of authorship rooted in their ability to act as trusted and inspired vessels through which their muse - the brand itself - speaks. In the Hellenic era, poets were often seen as being possessed by divine inspiration, granting them authorial status without recognition as originators. Similarly, religious leaders will often claim to be inspired by God when writing sermons, channeling and translating the divine for their constituencies rather than actively creating works based on their own talent or skills as writers and orators. Corporate authority is also vested in the ability to convincingly speak on behalf of the brand, and to translate its popular attributes into appropriate production and consumption outlets.

The courts and corporations often anthropomorphize character brands, assigning them human qualities and characteristics that seemingly account for their success, but which are also in need protection against disreputable (i.e., unauthorized) exploitation and are dependent on inspired stewards to assist in bringing their unique traits to the public’s attention. For example, in Walt Disney Co. v. Powell (1988), a case fought over the sale of unauthorized t-shirt decals, the court declared, ‘‘Defendant’s free ride on the ingenuity, skillful promotion, and resulting public acceptance which Disney has rightfully gained from these charming mouse characters must come to an end.” While the verdict suggests that Disney’s mouse characters possess an innate charm, the above quotation also points to the type of labor Disney performed in earning the right to profit from Mickey’s reputation, namely its ‘‘skillful promotion,’’ which has contributed to Mickey’s ‘‘public acceptance.’’ In other words, corporations demonstrate their authorial function through their managerial acumen.

The Lone Ranger, Incorporated (LRI) fought several legal battles during this period that reveal how corporations both articulated and had authorship conferred upon them by linking their marketing efforts and managerial oversight with their ownership rights. The courts recognized LRI’s managerial role as imbuing it with authorial rights.

LRI encountered several challenges to its exclusive rights to exploit the Lone Ranger property, and engaged in several court battles defending its sole authority over the iconic hero. LRI won most of these cases, but that is not really the point. What is of interest is how the company argued for its authorial rights by asserting its managerial acumen without making any overt origination claims over the Lone Ranger.

In 1937, LRI entered into a production deal with Republic Productions to produce a 15-part film serial based on the Lone Ranger radio personality. Released in 1938, the films quickly became a box office phenomenon. The Lone Ranger film serial’s success also brought with it a wave of legal troubles. In July 1938, Buck Jones, a professional cowboy and part-time movie actor, filed suit claiming that the Lone Ranger serial had stolen its representation of the lead hero from his own established personality and was, thus, profiting from Jones’ reputation. In his accusation, Jones pointed out that he had starred in more than two-dozen Western film serials (several for Republic), often playing a heroic role similar to that of the Lone Ranger and that he too rode a white horse named Silver.  

Although copyright law merely required LRI to demonstrate origination, the corporation was reluctant to reveal its role in creating the Lone Ranger. How could it claim authorship over a property whose economic value largely depended on its iconic and, hence, authorless status?

Instead, LRI adamantly stressed the work it put into the property’s promotion as evidence of its authorial imprint. Sales promotion and advertising manager Charles C. Hicks gave the most detailed testimony at the trial. Hicks spoke at length about preparing promotional materials for potential sponsors. He rhetorically positioned the company as spreading the Lone Ranger gospel. For example, Hicks described in detail the results of an early public appearance of an actor in a Lone Ranger costume:

I used [the picture] to show the popularity of the radio program, because of the fact that so many children came to Belle Isle to see the Lone Ranger, proof of which was when all that crowd of 72,000 kids broke ranks and it took the police two hours to keep re-forming, and finally only the Lone Ranger himself could get those kids back on the grand-stands to allow the parade to proceed, which made good publicity in the popularity of the Lone Ranger.  

While opposing counsel objected to the relevance of Hicks’ testimony, it is clear that it served an important function in articulating LRI’s authorial ownership of the property. Hicks’ testimony furthered the Lone Ranger’s legend all the while foregrounding the company’s role in furthering it as mark of personality and thus proof of authorship.

The court found in Republic’s favor and Jones withdrew his complaint. Without ever admitting to originating the Lone Ranger, LRI successfully established its authorial credentials by foregrounding its managerial role in shaping appropriate public perceptions of the otherwise immaterial icon. In particular, LRI argued that its promotional work foreground the Lone Ranger’s positive ability to inspire children to respect authority. LRI’s efforts show how corporations articulate their economic rights in complex ways, often justifying them on the basis of their reputation management skills as much as their financial investment in a property.

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LRI’s legal battles played an important role in both protecting the company’s assets as well as in defining its public identity as the Lone Ranger’s steward and consumer guardian. The company staked its reputation on its managerial skill, which it employed in aligning the Lone Ranger’s popularity with profitable and normative social values.

LRI would wear its litigiousness like a badge of honor, going so far as to equate its legal counsel, Raymond Meurer’s efforts to squash infringements with the heroic actions of the Lone Ranger, himself. Publicity materials describe Meurer as tirelessly traveling to every part of the country to ‘‘put down imposters, block infringements and guard against misrepresentation in publicity or advertising’’ in order to protect the American values the Lone Ranger represented. Thus, LRI not only sought recognition of its authority through legal action, it also sought to articulate its authority by promoting this work as essential to its rights to property.

Although not well cited in legal decisions or law reviews, Buck Jones v. Republic offers important insights into how corporations construct their legal rights over IP in ways that foreground their managerial stewardship. When the Supreme Court sided with companies like the Disney Corporation and Dr.Seuss Enterprises in 2004 and extended term limits for copyright by an additional 20 years (now lifetime plus 70 for authors, 95 for corporations), it was partly swayed by the argument that if the Cat in the Hat fell into the public domain, the character would fall victim to nefarious misuses and therefore required the continued oversight of its corporate benefactor to safeguard its reputation.