The Stuff Dreams Are Made Of: Copyright in Fictional Characters

August 7, 2023

When branding a new product, many businesses allude to copyrighted works either to honor a creative work or cash in on a pop culture success. The practice is very common across a wide variety of products, including t-shirts, stickers, craft beers, and even car commercials. You may even be considering alluding to a copyrighted work for your next product. Unfortunately, brand creators are often unaware of the dangers associated with the practice as it risks trademark and copyright infringement. This four-part series introduces the limits of the applicable legal doctrines, as well as the defenses available.

When can you use a fictional character created by someone else in your advertising? We have the answer here, in our last installment of this series of copyright and trademark articles. In Part I, we examined how brand creators allude to copyrighted works in their brand name, trade dress, and advertising to associate their new product with the positive associations consumers already had with the copyrighted work. In Part II, we saw that such allusions could constitute trademark infringement and reviewed the fair use and parody defense. In Part III, we turned our attention to copyright infringement and distinguished between the protectable elements of a copyrighted work and the unprotectable elements (e.g., historical events, short phrases, and stock scenes/characters). In Part IV below, we conclude our series by analyzing copyright doctrine as it applies to fictional characters.

Protection for Some, But Not All Characters

Recall that one purpose of copyright law is to promote new creative works and encourage the pursuit of new creative endeavors. As a result, originality is an essential element of a copyrightable work. The copyright statute expressly eschews protection of mere ideas, processes, and concepts but protects the creative expression of those ideas and concepts. This is called the “idea-expression dichotomy,” and it means in practice that copyright law protects movies and novels, but not the general ideas behind the work or the basic plot points. Consequently, as discussed in Part III, stock scenes and stock characters are not protectable elements under copyright law. For example, no one can claim exclusive rights to stock characters like the trusty sidekick or the wise mentor. If copyright protection extended to these basic building blocks of storytelling, creativity would be stifled.

The difficulty, though, is in distinguishing between a mere stock character and a character that deserves protection under copyright law. In general, the less developed a character, the less likely they can be copyrighted. Nowadays, courts tend to apply one of two tests: the Sam Spade test and the sufficient delineation test. If a given character meets either of those tests, the character will receive copyright protection:

The Sam Spade Test

The Sam Spade test, also called the “story being told” test, comes from a 1954 case[1] about Sam Spade, the detective protagonist in the novel The Maltese Falcon. In that case, the court held that a character is protectable and is not a stock character, if that character “really constitutes the story being told,” as opposed to being merely being “ the chessman in the game of telling the story.” Certainly when we hear that description, we can think of novels, movies, or plays in which the development of a central character, or characters, is the essence of the story, while the other characters in the story function merely as chess pieces to introduce conflict or propel the narrative forward. To lift a line from the film The Maltese Falcon, a character constituting the story being told is “the stuff [copyright] dreams are made of.”

The Sufficient Delineation Test

The second test, and the one most often used by courts when grappling with extending copyright protection to a character, is the sufficient delineation test. The sufficient delineation test asks whether a specific character is “especially distinctive,” that is, whether the character displays “consistent, widely identifiable traits.” Some courts have broken this test into three prongs: (1) whether the character has physical as well as conceptual properties; (2) whether the character is recognizable through those identifiable traits whenever it appears; and (3) whether the character contains elements of original expression. The heart of this test is an attempt to determine the exact point at which the scale tips and a character no longer is a stock character but becomes a sufficiently delineated character protected by copyright.

Applying the Tests: Actual Mileage May Vary

If you’ve read the previous parts in this series, your antenna is hopefully now tuned to spotting problems with the seemingly simple tests put forth by the courts. You may be wondering: How sufficient is sufficient? When is a trait “identifiable”? And, how does the type of media (e.g., novel, comic book, movie) influence the outcome? You should not be surprised that where the rubber meets the road and the tests are applied by human judges to very fact-specific scenarios, outcomes vary. Some results seem to track with common sense and lay intuition, while others may leave you scratching your head.

For example, it is unsurprising that courts have extended copyright protection to characters like Superman and Batman, who have distinctive backstories, personalities, and visual traits. Courts indeed have recognized a distinction between visual characters, such as those found in comic books and movies, and literary characters, who are not visually depicted. When characters are visually depicted, they are more likely to be protected by copyright because they have been infused with more distinctive elements. The Sam Spade court decision slyly noted, “The description of a character in prose leaves much to the imagination, even when the description is detailed. . . . Even after all  [the lengthy description of Sam Spade from the novel], one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like.” So, it makes sense that the court would extend copyright protection to Batman on account of his tragic backstory, his non-lethal code of conduct, his crime fighting equipment, and his distinctive cape and horned cowl.

However, consider the copyright protection given to James Bond. On the surface, it may seem as though a character who has been in as many novels and movies as he has would unquestionably be copyrightable. But, in attempting to define precisely what makes him protectable, the court described the following elements: cold-bloodedness, love of martinis, license to kill, use of firearms, marksmanship, physical strength, and sophistication. Couldn’t that describe any competent spy, or really, any stock spy character? In a similarly questionable decision, the court found Godzilla to be a copyrightable character and sufficiently delineated as a “pre-historic, fire-breathing, gigantic dinosaur alive and well in the modern world.” Again, one wonders whether that description is better suited for a stock character. Come to think of it, other than “fire-breathing,” that description perfectly fits the T-Rex in the Jurassic Park movies, which seems to develop more of a personality with each film in the franchise.

Character Copyright for Fictional Species, Planets, and Vehicles?

Courts have even extended copyright protection to fictional species, planets, and vehicles. In a recent case involving a fan-fiction film set in the Star Trek universe, Paramount Pictures convinced the court that not only were the major characters protected under copyright doctrine, but the protection extended to the fictional Klingon and Vulcan species due to their unique physical and intellectual features. Not content to stop there, the court went further to grant protection even to the fictional planets from which those species hail. The court determined that although the fictional planets were merely collections of individually unprotectable elements (i.e., costumes, spaceships, weapons, and architecture), when combined, they constitute a protectable character. The outcome of this case may have been driven in large part by the fact that the infringing work was indisputably a fan-fiction work, clearly intending to borrow from prior Star Trek works. Yet, this decision leaves many open questions about the extension of copyright protection to collections of otherwise unprotectable elements. Many science fiction and fantasy works, for example, share common characteristics of environments, key characters, and motifs.

Finally, courts have even treated the Batmobile, the fictional vehicle driven by Batman, as a character enjoying copyright protection. In an interesting decision from the Ninth Circuit, the court held that the Batmobile satisfied the three-prong sufficient delineation test. This may be surprising if you consider how much the Batmobile has changed over time and wonder whether it truly has the consistent identifiable traits required to be sufficiently delineated. For example, contrast the iteration of the Batmobile driven by Adam West’s Batman in the 1966 television series with the version driven by Christian Bale’s Batman in the 2008 film The Dark Knight. The Ninth Circuit, though, analogized the changes in the vehicle to “costume changes that do not alter the Batmobile’s innate characteristics, any more than James Bond’s change from blue swimming trunks (in Casino Royale) to his classic tuxedo affects his iconic character.”

Bottom Line

Copyright questions are notoriously difficult and highly fact-dependent, especially when it comes to copyright protection for characters. Drawing the line between a stock character and a sufficiently delineated character is challenging enough, and the possibility that character copyright protection may extend to fictional vehicles has only muddied the waters further. But if you enjoy your legal doctrines like you enjoy your martinis, you will love character copyright because this one is shaken, not stirred.

[1] Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945 (9th Cir. 1954).

This article is taken from Paul M. Matenaer, Never Tell Me the Odds: How to Avoid Infringement When Alluding to Copyrighted Works in Branding, 22 Chi.-Kent J. Intell. Prop. 86 (2023).

Paul Matenaer
Paul Matenaer