Title

Distinctively Delineated Fictional Characters Who Constitute the Story Being Told: Who Are They and Do They Deserve Separate Copyright Protection?

Abstract

Literary characters are protected within the copyright of the original work in which they appear, but the law is less clear when a character is separated from the original work and leads an independent life. The two main tests articulated by courts to deal with the phenomenon of an independent character, the “distinctly delineated” and “story being told” tests have not been particularly helpful. The tests are mainly used after a decision has already been reached to give the decision additional validity by uttering the magic words “distinctly delineated” or “story being told”.

A better alternative is to rely on the copyright protection in the original work since it will be difficult to copy a character without copying a substantial amount of the original author’s expression. The substantial similarity test is well suited for determining when so much has been taken from the original so as to constitute infringement. Furthermore, trademark and unfair competition laws protect the character that is so well known that an infringer need only mention the name without copying the expression.

Granting fictional characters independent protection would go against the purpose of copyright law since it would limit creativity and the dissemination of new works to the public. For years, authors have borrowed from each other and used these building blocks to create new inspiring and enriching works. Offering independent protection to fictional characters would limit the pool of raw material and would do a great disservice to the public. The main concern of copyright law should be to promote the progress of the arts, not to secure an everlasting source of income for character owners.

Disciplines

Intellectual Property Law

Date of this Version

October 2005