Protecting Fictional Characters Under Copyright Law

It all depends on how well they are defined ...

Fictional characters can be protected separately from their underlying works as derivative copyrights, provided that they are sufficiently unique and distinctive—for example, James Bond, Fred Flintstone, Hannibal Lecter, and Snoopy. Judge Learned Hand established the standard for character protection in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), when he stated that, “... the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

For example, alien characters stranded on earth is a popular and recurring theme as portrayed in My Favorite Martian, Starman, Alien Nation, Transformers, District 9, Predators, and The Man Who Fell to Earth. The idea of a stranded alien character, without embellishment, is not protectible.

EXAMPLE: A relatively unknown play (Lokey From Maldemar) featured an alien with powers of levitation and telepathy, stranded on earth and pursued by authoritarian characters. The playwright sued the owners of the movie E.T.—The Extra-Terrestrial, claiming that her character was infringed by the E.T. character. A federal court disagreed, ruling that that the character from Lokey was too indistinct to merit protection. (Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984).)

However, once the stranded alien acquires more distinctive characteristics—for example, a big-headed, long-necked alien with a glowing finger who murmurs “Phone home”—it is distinct enough to merit protection and its owners can prevent others from using his image and expression. (Universal Studios, Inc. v. J.A.R. Sales, Inc., 216 U.S.P.Q. 679 (C.D. Cal. 1982); Universal Studios, Inc. v. Kamar Indus. Inc., 217 U.S.P.Q. 1165 (S.D. Tex. 1982).)

Exploitation of fictional characters is a crucial source of revenue for entertainment and merchandising companies. Characters such as Superman and Mickey Mouse are the foundations of massive entertainment franchises and are commonly protected under both copyright and trademark law.

The protection afforded to fictional characters sometimes clashes with the fair use right to comment upon or criticize those characters. This is particularly common in parody cases. For example, one court refused to permit an X-rated parody, Scarlett Fever, that used characters from Gone With the Wind. (Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351 (N.D. Ga. 1979) . Another court permitted publication of a novel using characters from Gone With the Wind but written from a slave’s perspective. (Suntrust Bank v. Houghton Mifflin Co., 268 F.2d 1257 (11th Cir. 2001).) The disparity in the two opinions—both based on Gone With the Wind—may be due to the fact that in one work the characters were lampooned in a broad sexual farce, while in the other the characters were used to provoke discussion about racial stereotypes.

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