Fictional characters can be protected separately from their underlying works based on the legal theory of derivative copyrights. One must, however, prove that they are sufficiently unique and distinctive to merit this protection. A derivative work is protected as part of the bundle of rights given to the creator of the original work under federal law; 17 U.S.C. § 106.
Consider, for example, James Bond, Fred Flintstone, Hannibal Lecter, and Wonder Woman. These characters are much more than any particular film or TV episode. Thus, the creator of such a character would want broad protection over the character itself, rather than merely the specific work in which the character appeared.
Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit established the standard for character protection in a case called 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 protectable.
Consider this 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 a stranded alien character acquires more distinctive features or aspects—for example, a big-headed, long-necked alien with a glowing finger who murmurs “Phone home”—it becomes distinct enough to merit protection and its owners can prevent others from using the character's image and expression.
It is not difficult to understand why the protection of fictional characters is such an important issue for copyright owners. Exploitation of fictional characters is a crucial source of revenue for entertainment and merchandising companies. Characters such as Superman and Batman 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.
In short, the copyright protection available to fictional characters is a complex issue with a good deal of money at stake. Courts will often weigh the fair use considerations against the rights of copyright owners to control derivative works.