BNA’s
Patent, Trademark
& Copyright Journal
®
Reproduced with permission from BNA’s Patent, Trademark & Copyright Journal, 84 PTCJ 285, 06/15/2012. Copyright 姝 2012 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Copyright Protection for Fictional Characters
BY ALLISON S. BREHM
AND
ERIC W. MAY
t is often the characters portrayed in motion pictures, television shows, and all forms of fiction that
drive the story. After all, what would Goldfinger be
without James Bond, Rocky without Rocky Balboa, The
Wizard of Oz without Dorothy, Tin Man, Cowardly
Lion, or Scarecrow? Where such works are copyrighted, a component of that copyright protection may
extend to the characters themselves.
A copyright-protected character can be exceedingly
lucrative for the copyright owner. Copyright protects
against copying of expressive elements of that character and thus paves the way for entire franchises to be
built upon a single character.
Because of the central role characters can play in the
plot development of any given creative work, it is no
surprise that owners of the copyrights in such works
seek to extend protection to the characters themselves.
And yet, given that creators are often inspired by and
borrow from the creative works of others, it is also no
I
Allison S. Brehm is a partner with Kelley
Drye & Warren LLP, Los Angeles. She works
in the firm’s entertainment and media, litigation, and intellectual property and technology practice groups. Brehm can be reached at
abrehm@kelleydrye.com.
Eric W. May is an associate in the firm’s Los
Angeles office. He represents entertainment
companies in claims involving copyright,
trademark, right of publicity, breach of contract, and general business disputes. May can
be reached at emay@kelleydrye.com.
COPYRIGHT 姝 2012 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
surprise that disputes arise as to the parameters of
copyright protection for characters.
This article addresses the circumstances under which
courts afford characters copyright protection. The article begins with a basic overview of copyright law, followed by an explanation of the factors that courts apply
in assessing copyright protection for characters, and
then delves into the variety of characters from films,
television shows, novels, comic books, and advertisements that courts have analyzed.1
I. Copyright Law Basics
Copyright is a form of protection for authors of
‘‘original works of authorship.’’2 It gives the owner the
exclusive right to reproduce the copyrighted work, distribute copies to the public, and prepare derivative
works, among other exclusive rights.3 Where a work is
copyrighted, a component of that protection may extend to the characters within that work.4
Just because a work is copyrighted, however, does
not mean that every element of the work is protected
against copying. The primary objective of copyright is
‘‘to promote the Progress of Science and useful Arts.’’5
1
There are alternate bases that may be used to protect distinctive characters and their names which are not addressed in
this article, including protection under trademark, unfair competition, and right of publicity laws. See 2 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition
§ 10:45.
2
17 U.S.C. § 102(a).
3
17 U.S.C. § 106.
4
Warner Bros. Entertainment Inc. v. X One X Productions,
644 F.3d 584, 597, 99 USPQ2d 1153 (8th Cir. 2011) (82 PTCJ
347 7/15/11); Metro-Goldwyn-Mayer Inc. v. American Honda
Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995).
5
U.S. Const. art. I, § 8, cl. 8.
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2
As a means of satisfying this objective, copyright protects an author’s expression of ideas, but not the ideas
themselves.6
Indeed, ‘‘copyright assures authors the right to their
original expression, but encourages others to build
freely upon the ideas . . . conveyed by a work.’’7 Thus,
‘‘every idea . . . in a copyrighted work becomes instantly available for public exploitation at the moment
of publication.’’8
This is known as the ‘‘idea/expression . . . dichotomy’’ and it ‘‘applies to all works of authorship.’’9
As the Supreme Court has explained, ‘‘[t]his result is
neither unfair nor unfortunate. It is the means by which
copyright advances the progress of science and art.’’10
These principles hold equally true in the context of
copyright protection for characters within a work. A
character, it has been said, ‘‘is an aggregation of the
particular talents and traits his creator selected for
him.’’11 Copyright protects characters whose talents
and traits qualify as unique elements of expression, not
simply basic ideas.
Where a dispute has arisen over the use of a character, courts will first consider whether the character allegedly copied constitutes protected expression or is
free for the taking. Then, courts will consider whether
copying of that character gives rise to a copyright infringement claim by determining the degree of substantial similarity between the original character and the alleged copy.12
This article focuses primarily on the first consideration and, specifically, the tests and factors that courts
apply to determine whether or not characters are copyright protected and the particular characters that have
been afforded copyright protection.
II. The Dominant ‘Tests’ Courts Apply in
Determining Whether a Character Merits
Copyright Protection
Ordinarily, characters are not afforded copyright protection unless the character is either (1) especially distinctive; or (2) so central to the story that the character
is essentially the ‘‘story being told.’’13
These tests stem from two decisions of the U.S.
Courts of Appeals—one from the Second Circuit which
governs New York among other jurisdictions,14 and the
other from the Ninth Circuit, which governs California
among other jurisdictions.15 Courts apply one or both
6
Eldred v. Ashcroft, 537 U.S. 186, 219, 65 USPQ2d 1225
(2003) (65 PTCJ 224, 1/17/03); Kouf v. Walt Disney Pictures &
Television, 16 F.3d 1042, 1045, 29 USPQ2d 1877 (9th Cir.
1994); see also 17 U.S.C. § 102(b).
7
Feist Publications Inc. v. Rural Telephone Service Co., 499
U.S. 340, 349-50, 18 USPQ2d 1275 (1991) (41 PTCJ 443,
3/28/91).
8
Eldred, 537 U.S. at 219.
9
Feist, 499 U.S. at 350.
10
Id.
11
Warner Bros. Inc. v. American Broadcasting Cos., 720
F.2d 231, 243, 211 USPQ2d 97 (2d Cir. 1983).
12
1 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 2.12, at 2-178.25-26.
13
See Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1176, 66
USPQ2d 1829 (9th Cir. 2003) (66 PTCJ 208, 6/13/03).
14
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121, 7
USPQ 84 (2d Cir. 1930).
15
Warner Bros. Pictures Inc. v. Columbia Broadcasting
System, 216 F.2d 945, 950, 104 USPQ2d 103 (9th Cir. 1954).
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of these tests, often depending on the type of character
that is involved.
A. The ‘Especially Distinctive’ Test
Under the ‘‘especially distinctive’’ test, characters
that are ‘‘sufficiently delineated’’ and that display ‘‘consistent, widely identifiable traits’’ merit copyright protection.16
This test originated in a Second Circuit decision from
1930, Nichols v. Universal Pictures Corp., involving alleged infringement of the play Abie’s Irish Rose by Universal Pictures’ film The Cohens and the Kellys.17 The
court held that Universal Pictures did not infringe the
story or the characters in the play.18
As for the characters, the court explained, in oftquoted language, 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.’’19
Viewing the only similar characters in both works—
‘‘the lovers’’—the court explained that the ‘‘lovers are
so faintly indicated as to be no more than stage properties. They are loving and fertile; that is really all that
can be said of them, and anyone else is quite within his
rights if he puts loving and fertile lovers in a play of his
own, wherever he gets the cue.’’20 Accordingly, the
playwright could not prevail against Universal Pictures
for copyright infringement based on characters that are
not especially distinctive.21
B. The ‘Story Being Told’ Test
Arguably more stringent than the especiallydistinctive test, the ‘‘story being told’’ test requires that
the character be so central to the story that it is the
story in order to merit copyright protection.
The landmark case that introduced the story-beingtold test involves the ‘‘Sam Spade’’ character from
Dashiell Hammett’s serial publication, The Maltese Falcon. In Warner Bros. Pictures Inc. v. Columbia Broadcasting System, Warner Bros. brought suit against
Hammett and his licensees for copyright infringement
based upon a dispute regarding the ownership and use
of certain characters of The Maltese Falcon.22
After Hammett sold Warner Bros. certain rights to
The Maltese Falcon, Warner Bros. claimed that it had
acquired the exclusive right to the book, including the
Some courts within the Ninth Circuit have stated that it is unclear whether the ‘‘story being told’’ test was only dicta. E.g.,
Olson v. National Broadcasting Co., 855 F.2d 1446, 1451 n.6.,
8 USPQ 1231 (9th Cir. 1988) (citing Walt Disney Productions
v. Air Pirates, 581 F.2d 751, 755, 199 USPQ 769 (9th Cir.
1978)). Nevertheless, courts frequently consider the ‘‘story being told’’ test, in addition to the ‘‘especially distinctive’’ test.
See, e.g., Rice, 330 F.3d at 1176 (applying both tests); Olson,
855 F.2d at 1452-53 (same); Bach v. Forever Living Products
U.S. Inc., 473 F. Supp. 2d 1127, 1136 (W.D. Wash. 2007)
(same); Anderson v. Stallone, 11 USPQ2d 1161, 1166-67 (C.D.
Cal. 1989) (same); Metro-Goldwyn-Mayer Inc. v. American
Honda Motor Co., 900 F. Supp. 1287, 1295-97 (C.D. Cal. 1995)
(same).
16
Rice, 330 F.3d at 1175.
17
Nichols, 45 F.2d at 120.
18
Id. at 122.
19
Id. at 121.
20
Id. at 122.
21
Id.
22
Warner Bros. v. CBS, 216 F.2d at 946-48.
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individual characters, and any subsequent use of the
characters in the book violated Warner Bros.’ rights.23
The Ninth Circuit held that the transfer of rights to
Warner Bros. did not include Sam Spade and the other
supporting characters.24 The court went on to explain
the circumstances under which a character may be
copyrightable: ‘‘[I]t is conceivable that the character really constitutes the story being told, but if the character
is only the chessman in the game of telling the story he
is not within the area of the protection afforded by the
copyright.’’25
By the court’s analysis, Sam Spade, and the other
characters of the novel, were not the story, but rather
only the ‘‘vehicles for the story told.’’26 Thus, Dashiell
Hammett won the right to freely use Sam Spade in
other stories, even though Hammett had assigned
Warner Bros. the rights in the story that spawned the
character. In the court’s words, the ‘‘characters were
vehicles for the story told, and the vehicles did not go
with the sale of the story.’’27
While the court’s discussion of copyright protection
for characters was arguably dicta because the case concerned the scope of the transfer of rights in The Maltese Falcon, the story-being-told test has endured over
time, although its continuing viability has been called
into question.28
Sam Spade, like many other hard-boiled private eyes
who are a dime a dozen, has captivated the imaginations of audiences for ages. But why does a memorable
character like Sam Spade fall outside of copyright
protection?
One answer to this question may be that not every
film noir has a character as memorable as James Bond.
Indeed, everyone has seen The Maltese Falcon, but no
one knows how Sam Spade drinks his martinis.
III. The Legacy of ‘Shaken But Not Stirred’
There is a reason why certain characters have endured in our imagination and have been afforded copyright protection by law. Copyright-protected characters
have achieved a high degree of recognition or identification.
They conjure up distinct images in our imaginations
simply by reading their names: James Bond,29 Mickey
Mouse,30 Rocky Balboa,31 Godzilla,32 Tarzan,33 E.T.,34
Scarlet O’Hara and Rhett Butler from Gone with the
23
Id.
24
Id. at 949-950.
25
Id. at 950-51.
26
Id. at 950.
27
Id. Subsequently, the Ninth Circuit arguably limited the
story-being-told test to literary characters or characters that
are simply ‘‘word portraits,’’ i.e., not visually represented. See
Walt Disney v. Air Pirates, 581 F.2d at 754-55. Where the author adds a ‘‘visual image,’’ the court recognized that it is
easier to make the character distinctive. Id. Thus, characters
who are visually represented—such as the Disney character
Mickey Mouse—are ‘‘more likely to contain some unique elements of expression.’’ Id.
28
See, e.g., MGM v. American Honda, 900 F. Supp. at
1295-97.
29
Id. at 1296.
30
Walt Disney Productions v. Air Pirates, 345 F. Supp. 108,
113 (9th Cir. 1972), rev’d in part on other grounds, 581 F.2d
751 (9th Cir. 1978).
31
Anderson v. Stallone, 11 USPQ2d 1161, 1166 (C.D. Cal.
1989).
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Wind; Tom and Jerry; and Dorothy, Tin Man, Cowardly
Lion, and Scarecrow from Wizard of Oz.35
Each of these characters has unique, identifiable
traits and plays a central role in the underlying work—
which convinces courts that the characters merit copyright protection.
One of the most iconic characters who has earned
copyright protection is James Bond. In Metro-GoldwynMayer Inc. v. American Honda Motor Co., MGM
brought an action against Honda and its advertising
agency, alleging that TV ads infringed MGM’s copyright in the James Bond character.36
The court found that the James Bond character is
protectable. The character is sufficiently distinct in light
of the traits that are specific to him: ‘‘his coldbloodedness; his overt sexuality; his love of martinis
‘shaken, not stirred’; his marksmanship; his ‘license to
kill’ and use of guns; his physical strength; his sophistication.’’37 Those traits have been further delineated
over the course of the 16—now 22, soon to be 23—films
in which Bond has appeared.38
Moreover, the James Bond character was ‘‘the story
being told,’’ as ‘‘audiences do not watch Tarzan, Superman, Sherlock Holmes, or James Bond for the story[;]
they watch these films to see their heroes at work. A
James Bond film without James Bond is not a James
Bond film.’’39
The same holds true for Rocky Balboa—a Rocky film
without Rocky Balboa is not a Rocky film, as the court
found in Anderson v. Stallone.40 In that case, the plaintiff wrote a treatment of Rocky IV that he hoped Sylvester Stallone and MGM would use as a sequel to
Rocky III.41 The treatment incorporated the characters
created by Stallone in his prior movies.
In affording copyright protection to the Rocky Balboa
character, the court explained that the characters in the
Rocky movies
[a]re one of the most highly delineated group of
characters in modern American cinema. . . .
Rocky Balboa is such a highly delineated character that his name is the title of all four[, now five,]
of the Rocky movies and his character has become
identified with specific character traits ranging
from his speaking mannerisms to his physical
characteristics.42
The court also found that the Rocky characters satisfied the story-being-told test—i.e., they were ‘‘so highly
developed and central to the three movies made before
Anderson’s treatment that they ‘constituted the story
being told.’ ’’43
32
Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206,
1216, 46 USPQ2d 1801 (C.D. Cal. 1998).
33
Burroughs v. Metro-Goldwyn-Mayer Inc., 519 F. Supp.
388, 391 (S.D.N.Y. 2001).
34
Universal City Studios Inc. v. Kamar Industries Inc., 217
USPQ 11662 (S.D. Tex. 1982).
35
Warner Bros. v. X One X Productions, 644 F.3d at 597.
36
MGM v. American Honda, 900 F. Supp. at 1291-92.
37
Id. at 1296.
38
Id.
39
Id.
40
See Anderson v. Stallone, 11 USPQ2d at 1167.
41
Id. at 1162.
42
Id. at 1166.
43
Id. at 1167.
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4
Godzilla is yet another character with discernible
traits that appear in each of his films. As the court in
Toho Co. v. William Morrow & Co. stated, Godzilla has
‘‘developed a constant set of traits that distinguish him/
her/it from other fictional characters,’’ including that
‘‘Godzilla is always a pre-historic, fire-breathing, gigantic dinosaur alive and well in the modern world.’’44
Based on these characteristics, the court found that
Godzilla was a ‘‘well-defined character with highly delineated consistent traits,’’ which entitled the character
to copyright protection.45
Tarzan is also sufficiently distinct to merit copyright
protection. In the court’s unambiguous words, Tarzan is
‘‘the ape-man. He is an individual closely in tune with
his jungle environment, able to communicate with animals yet able to experience human emotions. He is athletic, innocent, youthful, gentle and strong. He is Tarzan.’’46
Many Disney characters like Mickey and Minnie
Mouse, Donald Duck, the Big Bad Wolf, the Three Little
Pigs, and Goofy also have their own distinct style. In
Walt Disney Productions v. Air Pirates, the court reasoned that the ‘‘distinctive style in which each [of the
Disney characters at issue] is drawn conjures up in a
world-wide audience . . . associations with rather extensive groupings of traits, characteristics and qualities.’’47
Indeed, ‘‘the principal appeal of each of the [Disney
characters] to the primary audience of children for
which they were intended lies with the character and
nothing else.’’48
If Mickey Mouse is protected, it is not surprising that
copyright protection may also extend to comic book
characters. In Decarlo v. Archie Comic Publications, for
instance, the court found that the Archie Comics character Josie is copyright-protected.
The court held her ‘‘unique bouffant hairstyle’’ and
the ‘‘spotted cat costume that inspired the development
of the character’s appearance as a ‘pussycat’ ’’ earned
Josie copyright protection.49 These elements, the court
explained, ‘‘are not ‘a mere delineation’ of an idea or
theme. They are, in fact, not necessary to the general
theme of Josie at all; instead, they are distinct ‘pictorial
and literary details [that] embody an arrangement of incidents and literary expressions original with the author, [and as such are] proper subjects of copyright.’ ’’50
Unlike characters that have been represented visually, such as in movies, cartoons, or comic books, literary characters are less likely to be afforded such protection, as the Sam Spade case demonstrates. This is because protection for literary characters can present a
‘‘troublesome question’’ due to the ‘‘difficulties of distinguishing distinct attributes of a literary character
44
Toho v. William Morrow, 33 F. Supp. 2d at 1216.
Id.
46
Burroughs v. MGM, 519 F. Supp. 388 at 391.
47
Walt Disney Productions v. Air Pirates, 345 F. Supp. 108,
113 (N.D. Cal. 1972); see also Walt Disney Productions, 381
F.2d at 754-55 & n.5 (affirming summary judgment in favor of
plaintiff on copyright infringement claims and recognizing
copyright protection for certain Disney cartoon characters).
48
Walt Disney Productions, 345 F. Supp. at 113.
49
Decarlo v. Archie Comic Publications Inc., 127 F. Supp.
2d 497, 505 n.49 (S.D.N.Y. 2001) (61 PTCJ 417, 3/2/01).
50
Id. (quoting Detective Comics Inc. v. Bruns Publications
Inc., 111 F.2d 432, 433-34, 45 USPQ 291 (2d Cir. 1940)).
45
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from its embodiment of more general ideas and
themes.’’51
In Bach v. Forever Living Products U.S. Inc., the
court nonetheless found the literary character Jonathan
Livingston Seagull, who appears in a single book bearing the same name, merited copyright protection even
though it was an ‘‘ordinary seagull.’’52 The court detailed the specific, unique traits of the seagull character:
a thinking, talking, philosophizing, risk-taking,
limit-testing seagull . . . with an extraordinary
name; who is anthropomorphized into a humanlike character who distinguishes himself by flying
higher and faster and farther than any gull has
ever flown before; and who emerges as an extraordinary and enlightened seagull who teaches
other seagulls so that they might similarly lift
themselves from a conventional life of scavenging
the shores for food to extend themselves and succeed beyond their ordinary lives.53
The court in Salinger v. Colting deemed Holden Caulfield, from J.D. Salinger’s novel The Catcher in the Rye,
also ‘‘sufficiently delineated’’ to merit copyright protection, although the court did not publish the reasons for
granting copyright protection to the Caulfield character.54
While many of the copyright-protected characters
mentioned above have achieved iconic status, that is by
no means a prerequisite. A character named ‘‘Bill,’’ who
appeared in just three television commercials and a
print advertisement, as a ‘‘balding, Caucasian male
dressed in a costume that appears to represent a stack
of United States one dollar bills, and is ‘‘a metaphor for
money that is not earning interest or any other form of
investment return,’’ is protected.55
Bill ‘‘is lazy, unproductive, childlike, innocent, naive,
and of average intelligence,’’ and although these traits,
alone, are not protectable, when ‘‘taken together with
Bill’s costume and his name, . . . the ‘totality’ of Bill’s attributes and traits create a sufficiently developed character.’’56 Bill was deemed to be ‘‘sufficiently distinctive
to be protectable by copyright’’ even though he was not
‘‘as distinctive as Superman, Godzilla, James Bond or
Rocky.’’57
Even an inanimate object may be copyrightprotected. In Halicki Films LLC v. Sanderson Sales and
Marketing, the Ninth Circuit implied that a car character named ‘‘Eleanor’’ from the motion picture Gone in
60 Seconds, may be copyrightable.58 Eleanor is a customized yellow Ford Mustang and, although ‘‘thefts of
other cars go largely unplanned,’’ whenever someone
51
Id. at 505.
Bach v. Forever Living Products U.S. Inc., 473 F. Supp.
2d 1127, 1136, 83 USPQ2d 1825 (W.D. Wash. 2007) (73 PTCJ
560, 3/9/07).
53
Id.
54
Salinger v. Colting, 641 F. Supp. 2d 250, 254 (S.D.N.Y.
2009), vacated on other grounds, Salinger v. Colting, 607 F.3d
68, 94 USPQ2d 1577 (2d Cir. 2010) (80 PTCJ 13, 5/7/10).
55
JB Oxford & Co. v. First Tennessee Bank NA, 427
F. Supp. 2d 784, 787, 799-800, 80 USPQ2d 1168 (M.D. Tenn.
2006) (71 PTCJ 726, 4/28/06).
56
Id. at 800.
57
Id. at 799.
58
Halicki Films LLC v. Sanderson Sales and Marketing,
547 F.3d 1213, 1225, 89 USPQ2d 1001 (9th Cir. 2008) (77 PTCJ
68, 11/21/08).
52
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tries to steal Eleanor, ‘‘circumstances invariably become complicated.’’59 The court did not definitively rule
on whether Eleanor is copyright-protected, but strongly
suggested Eleanor’s physical and conceptual qualities
qualify her for copyright protection.60
Each of the aforementioned characters shares specific, easily identifiable, and unique traits that make the
characters protectable under copyright law. Indeed, but
for perhaps Eleanor the car, the characters that have
achieved copyright protection are so distinct as to be
unforgettable. Yet, not every unforgettable character
earns protection.
For instance, the character named ‘‘Regan,’’ a 12year old girl who was possessed by demons in The Exorcist, failed the ‘‘story being told’’ test. In Warner Bros.
Inc. v. Film Ventures International, the plaintiffproducer brought an infringement claim against
defendant-producer for allegedly copying the character
and certain elements of The Exorcist, including ‘‘distinctive sounds, special lighting effects, levitation of
Regan’s body and the bed she is confined to, the spinning of [Regan’s] head 360 degrees and the falling back
of her eyes with pupils covered’’ as Regan was possessed by demons.61 The Regan character was not afforded copyright protection because the story of The
Exorcist was not ‘‘subordinated to the Regan character,’’ which the court contrasted with Disney’s Mickey
Mouse cartoon character.62
On the other end of the spectrum are characters who
are so undeveloped or generic as to fall squarely and
unquestionably within the category of unprotected
ideas. Creative works are populated with such unprotectable, and frankly forgettable, characters, as detailed
below.
IV. Forgettable Stock Characters
While characters may be copyright-protected, more
often than not most of the characters that are depicted
in any given work could never come close to satisfying
the especially-distinctive or story-being-told tests. This
is because characters are often so loosely drawn that
they are only an abstract outline of a character or are
otherwise one-dimensional, stock characters, such as
the following that have been the subject of copyright infringement lawsuits:
s a young wizard character with ‘‘no discernible
personality or distinguishable appearance’’;63
s a ‘‘blond, blue-eyed hero or doctors in ‘hot and
cold’ romances’’;64
s Vietnam veteran characters depicted ‘‘only by
three-or-four-line summaries’’;65
s children from different countries appearing in a
children’s book in which ‘‘[n]one of the characters
59
Id. at 1217, 1225.
Id. at 1225.
Warner Bros. Inc. v. Film Ventures International, 403
F. Supp. 522, 523-24 (C.D. Cal. 1975).
62
Id. at 525.
63
Allen v. Scholastic Inc., 739 F. Supp. 2d 642, 661, 97
USPQ2d 1335 (S.D.N.Y. 2011) (81 PTCJ 313, 1/14/11).
64
Feldman v. Twentieth Century Fox Film Corp., 723
F. Supp. 2d 357, 367 (D. Mass. 2010).
65
Olson v. National Broadcasting Co., 855 F.2d 1446, 1452,
8 USPQ2d 1231 (9th Cir. 1988).
60
61
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is discussed on more than one page’’ and ‘‘the
characters’ personality traits are undeveloped’’;66
s a ‘‘low comedy Jew and Irishman’’;67
s political ‘‘candidates and their scheming campaign
strategists’’; and68
s ‘‘lawmen’’ who are engaged in murder and other
criminal activity and are killed by their deputies.69
In addition to these unprotected characters, many
characters naturally flow from a given topic and thus do
not qualify for copyright protection. This is known as
the ‘‘scènes à faire doctrine,’’ under which ‘‘expressions
indispensable and naturally associated with the treatment of a given idea ‘are treated like ideas and are
therefore not protected by copyright.’ ’’70
For instance, in Porto v. Guirgis, there was an issue
as to whether Satan and other biblical characters in a
novel about ‘‘a trial of Judas Iscariot before a fictional
World Court of Religion presided over by Solomon and
held in the Federal Courthouse in New York’s Foley
Square’’ merited copyright protection.71 The ‘‘Satan’’
character was denied protection because he was an
‘‘obvious figure in any story about eternal damnation’’
who ‘‘necessarily results from an author’s choice to depict a trial of Judas Iscariot.’’72
The court found that the depiction of many of the biblical characters was simply ‘‘dictated by the choice to
tell a story about Judas and his alleged betrayal of
Jesus.’’74 Such characters are unprotectable ‘‘scènes à
faire.’’
As the above survey of cases and characters reveals,
it is not always obvious which characters will merit
copyright protection. Courts have afforded copyright
protection to a wide gamut of characters—from film
characters to cartoon and comic book characters to literary characters; from characters who have been developed over time in numerous works to characters who
have appeared in a single novel or less than a handful
of commercials.
A study of these characters reveals, however, that
they all share unique elements of expression that render many of them the most memorable characters to
have appeared in creative works. These characters have
particular talents and traits that leave an indelible impression.
Indeed, the mere mention of ‘‘Bond . . . James Bond’’
calls to mind a whole host of unique elements of expression, from the way Bond takes his cocktails, to his appearance, to the types of cars he drives, to his grace under pressure. These are the characters that receive
copyright protection.
66
Lewinson v. Henry Holt and Co., 659 F. Supp. 2d 547,
574, 93 USPQ2d 1183 (S.D.N.Y. 2009) (78 PTCJ 673, 10/2/09).
67
Nichols v. Universal, 45 F.2d at 122.
68
Blakeman v. Walt Disney Co., 613 F. Supp. 2d 288, 308,
91 USPQ2d 1637 (E.D.N.Y. 2009).
69
Herzog v. Castle Rock Entertainment, 193 F.3d 1241,
1259 (11th Cir. 1999).
70
Rice v. Fox Broadcasting, 330 F.3d 1175, 66 USPQ2d
1829 (9th Cir. 2003) (66 PTCJ 208, 6/12/08) (quoting Apple
Computer Inc. v. Microsoft Corp., 35 F.3d 1435, 1444, 32
USPQ2 1806 (9th Cir. 1994) (48 PTCJ 532, 9/22/94)); see also
Herzog, 193 F.3d at 1248.
71
Porto v. Guirgis, 659 F. Supp. 2d 597, 602, 93 USPQ2d
1666 (S.D.N.Y. 2009) (78 PTCJ 767, 10/23/09).
72
Id. at 612.
74
Id. at 615.
BNA
6-15-12