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   Author  Topic: Copyright protection of fictional characters  (Read 7924 times)
Isaac
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Posts: 3472
Re: Copyright protection of fictional characters
« Reply #5 on: Jul 16th, 2005, 9:22pm »
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Jeff,
 
I think a derivative work analysis might be sufficient to generate
exactly the same result as in most of the cases that I've read
that talk about copyrighted characters, but that isn't the
approach I've read in the opinions.
 
I think the case to look at are Disney vs. Air Pirates which does
a good job of summarizing the prior case law on copyrights of
characters.  Walt Disney v. Air Pirates, 581 F.2d 751, (C.A.Cal, 197Cool
 
Learned Hands take ton copyright of characters is discussed in
Nichols v. Universe Pictures, 45 F.2d 119, (2d Cir. 1930).
 
A link to an article discussing character copyrights is
http://www.publaw.com/fiction.html.
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Isaac
Isaac
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Posts: 3472
Re: Copyright protection of fictional characters
« Reply #6 on: Jul 17th, 2005, 7:38am »
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I just realized that I really did not answer the original
question.  IMO trying to get protection for a character that
never appears in a larger work is probably very difficult.  It
is also important to remember that copyright infringement of your
character would require copying or deriving from your character.
Someone comming up with a very similar character without
exposure to your creation is not infringing.  If your yet to be
finished work is also yet to be published, it's going to be pretty
evident that noone has actually copied from it since they have
not even seen it.
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Isaac
mactheknife
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Posts: 110
Re: Copyright protection of fictional characters
« Reply #7 on: Jul 17th, 2005, 4:42pm »
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The C.O.'s position regarding characters stems from the 1954 decision Warner Brothers Pictures vs Columbia Broadcasting System (in fact, the C.O. has their own "Maltese Falcon" prop from the movie on display).  Interestingly enough, they don't reference any of the other cases that have gone the other way (DC Comics vs. Bruns Publications, for example, where a comic character "Wonderman" was found to be infringing of the DC character "Superman").  As for publaw.com, they have separate articles discussing graphical characters and 'fictional' characters which you have already mentioned.  (Sorry, the above decisions are off the top of my head so I don't have real cites for them)
 
As for copyright registration, it used to be that if you described authorship you tried to register as "characters," registration was refused.  Nowadays, this term on the application is annotated by the office.  The annotation reads something like:
 
"Character(s) as such not registrable; registration made based on literary or graphic authorship describing or depicting the character(s)."
 
This kind of avoids having to make a determination as to whether the "actual" character is copyrighted or infringable, but the basic point is that the copyright office does not consider the idea for a character to be copyrightable, of course.
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thelorax
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Re: Copyright protection of fictional characters
« Reply #8 on: Jul 31st, 2005, 2:54am »
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thanks again for the info and links. Smiley
 
And Isaac - well, I was more referring to things that have been  "published" online. In online art galleries or personal websites. People often draw their own comic/story characters that they've created and post them on the internet with or without the completed work being finished. So despite the work not being published in a "real" format, people still have the chance to see them and potentially use them in some way. Although I can see how similarities can arise without anyone having known of the others work. It happens all the time. I'm not so much worried about that, similarities will happen, people get inspired by others all the time and theres nothing wrong with that. But I've seen some pretty heavy arguments arise out of character theft (and i mean outright, blatant copying) in the past, and there have always been people who come in saying "you can't copyright a character so it's fair game". But I couldn't find much real info on the subject, either way.
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Isaac
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Posts: 3472
Re: Copyright protection of fictional characters
« Reply #9 on: Jul 31st, 2005, 1:22pm »
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When you speak of "character theft" what activity are you referring to?
If someone where to copy a character from someone else's
drawing of an original character, the copying might constitute the
garden variety infringement of a creative work.  But if you are
referring to duplication of non visual attributes of the character
such as personality, special abilities and powers, and relationships
to other characters, then the question of copyrightable characters
is germane.  In my opinion, a short description of a characters
attributes without an underlying work may not be enough to produce
a protected character.
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Isaac
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