Copyrightability of characters in stories, movies, comic books and films?

All of us are familiar with Batman, Superman, Harry Potter, Stallone, the Terminator and a wide variety of similar characters from films, books, and movies; however, when is a character copyrightable?  Unfortunately, the answer varies based upon the jurisdiction, the judge, and the medium in which the character is fixed.

Generally, visually depicted characters are granted copyright protection under the more lenient “specifically delineated or especially distinct” standard.  Anderson v. Stallone. Often, this more lenient standard is justified, because the author is believed to have done more work and less imagination is required on the part of the reader. Id.

On the other hand, literary characters are often subject to the “story being told test” to acquire copyright protection.  Anderson.   This more stringent standard is often applied, because the author is perceived to have done less work and left more to the imagination of the reader.  Id. 

However, these generalities are only the starting point of the analysis.  Often, traits or mannerisms of characters are also protected and literary characters are sometimes considered as a group to determine if together the meet the “story being told” test.  The considerations often increase the likelihood of finding copyrightable subject matter.   Moreover, visually depicted characters sometimes get a thin or limited copyright, which is limited, to the specific image created by the artist.  

Essentially, the general principles sometimes lead to unexpected results in determining copyrightability.  Thus, creating copyrightable characters requires a greater understanding of the story, contemplated or planned use, and identifying traits that clearly define the character.  This understanding can be crucial to an author or artist’s ability to protect his or her work. 

Our readers may be interested in reading the following cases:

Warner Bros v. Colombia (denying copyright protection under the story being told test); MGM v. American Handed Motor Co. (grating copyright protection under the specifically delineated or story being told test to the James Bond character); and Silberman v. CBS (denying copyright protection to the Amos and Andy character, because their traits were in the public domain).

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