Protection of fictional characters

The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be.

Although every effort has been made to verify the accuracy of items carried in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Ohio 12 used this test to decide whether something is pornographic. The American judiciary has followed both these tests.

Burns Publications, F. Because, McClory argued, he possessed the rights to both the novel Thunderball and the materials developed during the writing of the initial Thunderball script, he also possessed the rights to certain plot elements that first appeared in those works: However, as with trademark law, unless a fictional character is used wrongly in a commercial context, it is unlikely that unfair competition laws would provide protection for the fictional character.

The important point is to recognize the potential value in your creations or in the creations as to which you are acquiring rights and to see with long term vision. This secondary meaning then allows the consumer to know that when he or she sees or relates to that character, that the particular source is behind it, either directly or through some quality-controlled licensing arrangement.

Trademark law, however, provides a number of key advantages—in particular, the temporally unlimited protection it may provide.

Plaintiff was a writer and was engaged by the defendant to write the scripts for some of the comic books that McFarlane then illustrated and had illustrated.

McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. The written agreement between the actor and the party engaging the services of the actor to portray such character should deal with these issues with specificity.

Furthermore, trademark protection may be precluded in those instances where there is a problem associated with relating the trademark to a single source such as in the entertainment industry where a character may be associated with an author, artist, film producer, sponsor or even with the character itself.

As it has come to be known, the Character Delineation Test prescribes that more developed the character, the more it embodies expression, and less a general idea. On a similar notion, German courts have repeatedly held that a famous character from actual or literary history cannot be registered for goods such as books or films that may directly deal with this classic character, but may very well be registered for other goods, such as soap see e.

Requisites similar to the four mentioned above could be the basis of examination by courts, altered by the law of the fora in which it is being implemented.

Further still, even characters that remain under copyright protection can be used in other works to the extent that such other use falls within the scope of the fair use provisions of United States copyright law. This was followed by further movies based on further versions of the character and the litigations multiplied.

Copyright law of India Section 13 of the Indian Copyright Act, allows for copyright in original literary, artistic, musical and dramatic works, as well as in sound recordings and cinematography films. Kasraian, supra, F.

Day and Night Co. Kasraian, supra, F. The specific facts that apply to your matter may make the outcome different than would be anticipated by you.including fictional characters that are (1) original, and (2) fixed in a tangible medium. 4 Cases construing the meaning of “originality” generally have required it to mean “independent creation plus a.

One of the most valuable assets in today’s entertainment industries is the established characters that audiences throughout the world have come to recognize. In the context of IP protection, “real-life” celebrities and fictional characters from book or movie franchises have a lot in common. The article Protection Of Graphic Characters provides an overview of the protection of characters and general guidelines for protection of a graphic character that is depicted by a cartoon or other graphic representation, such as Mickey Mouse or Superman.

Copyright protection for fictional characters

This article will focus on the protection available for a "fictional character" (also referred to as a "literary character"), such as James. Fictional characters can, under U.S.

law, be protected separately from their underlying works. This is based on the legal theory of derivative copyrights.

Copyright Protection For Fictional Characters

One must, however, prove that the characters are sufficiently unique and distinctive to merit this protection. provide adequate protection for fictional characters, plaintiffs and courts must often rely on alternative doctrines, such as trademark or publicity rights, to secure protection for fictional characters.


In the context of IP protection, “real-life” celebrities and fictional characters from book or movie franchises have a lot in common.

For both, traditional IP law still seems to struggle with establishing an international standard of protection.

Protection of fictional characters
Rated 5/5 based on 97 review