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(Message started by: thelorax on Jul 16th, 2005, 3:54am)

Title: Copyright protection of fictional characters
Post by thelorax on Jul 16th, 2005, 3:54am
I apologize if this has been asked before, I checked through the most recent threads and used the search function. I also read through everything on copyright.gov and I'm still confused about one issue. I am curious if it is possible to copyright fictional characters. It seems like I've heard before that things like Mickey Mouse are copyrighted or trademarked or in some way protected from their likeness being used without permission (or from being "stolen" and used in another persons literary or art work). A friend of mine got in legal trouble because she drew fanart of a specific species of dragon from a fantasy novel series. Is it then possible to protect a fictional species or race  and what determines if such a thing is copyrightable? I myself am working on a graphic novel and find myself illustrating my characters and creatures from it a lot, and I and many of my artist friends post their concepts on the internet in forums or on their websites along with descriptions of what they are, their personality traits, etc. It's usually just for "fun" or for the sake of creating. But sometimes it is for planning/conceptualizing larger projects.

I know that the actual images are copyrighted, and that the actual written words copyrighted. But is it is possible to protect one's own characters/species/concepts that they've illustrated or written descriptions about if the finished literary/film/comic book/what-have-you has yet to be completed?

Title: Re: Copyright protection of fictional characters
Post by thelorax on Jul 16th, 2005, 4:05am
also, i'd like to add. Would it still be possible to protect them in some way if they existed outside of any larger work whatsoever? (basically, i suppose, they just exist "inside your head" and you occasionally draw them for fun? are short descriptions of who they are accompanying the image enough?) and for clarification, I probably should have added. I'm talking about highly original things, not just "some guy in a generic outfit named Joe" or purple dog or something. But things that actually involved a creative process and have distinguishable personalities or other attributes.

Title: Re: Copyright protection of fictional characters
Post by Isaac Clark on Jul 16th, 2005, 7:13am
There is case law indicating that characters like Superman and Mickey Mouse are protectable even outside of the works in which they appear.    One of the things required is that the character be fleshed out in sufficient detail so that the character and not simply an idea for a character is protected.

It is easiest to meet the requirement for characters appearing in a visual medium and for characters appearing in a large body of work.

I'd particularly like to hear Mactheknife's take on this because there is a copyright circular on the copyright office web site that suggests that characters cannot be copyright protecte.   It probably is not possible to register a character separate from the work the character appears in, but that's not quite the same IMO as saying that the character is not protectable.

In any event, last time I looked at this subject I found a number of fairly well written articles on the subject through some searching on google.  If you need some pointers to those articles, let me know.


Title: Re: Copyright protection of fictional characters
Post by JSonnabend on Jul 16th, 2005, 9:51am
Isaac -

By straight-forward derivative work analysis, wouldn't a character depicted with sufficient artistic expression be protected "generally", as uses of the character in other contexts would be considered a derivative work?  I'm not sure if that's the reasoning in the case law you mention, but I wouldn't be surprised if it were.

BTW, do you have the cite handy for the case?  I'd love to look at it.

[edit]Oops, unless we're talking about written descriptions of characters, not drawings of them, about which I was speaking[/edit]

- Jeff

Title: Re: Copyright protection of fictional characters
Post by thelorax on Jul 16th, 2005, 4:23pm
Thanks for the info. I'd be really interested in reading those articles, Isaac.

Title: Re: Copyright protection of fictional characters
Post by Isaac Clark on Jul 16th, 2005, 9:22pm
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, 1978)

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.

Title: Re: Copyright protection of fictional characters
Post by Isaac Clark on Jul 17th, 2005, 7:38am
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.

Title: Re: Copyright protection of fictional characters
Post by mactheknife on Jul 17th, 2005, 4:42pm
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 (http://www.publaw.com/graphical.html) and 'fictional' characters (http://www.publaw.com/fiction.html) 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.

Title: Re: Copyright protection of fictional characters
Post by thelorax on Jul 31st, 2005, 2:54am
thanks again for the info and links. :)

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.

Title: Re: Copyright protection of fictional characters
Post by Isaac Clark on Jul 31st, 2005, 1:22pm
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.

Title: Re: Copyright protection of fictional characters
Post by thelorax on Aug 2nd, 2005, 9:16pm
I'm referring to copying both the visual look of a character and the personality/abilities, etc. Although sometimes the names would be changed slightly, or completely. But most of the time people are just taking complete concepts (both the visual and the written or implied aspects) and "claiming" them as their own. I guess the problem comes in when people feel like their "brain child" has been used without giving them any credit whatsoever for their creative efforts. And I know that you can copyright an image but it isn't very clear about when it's okay to take the "subject" of an image and re-draw it without giving credit or asking permission from the person who created it. I mean obviously pictures of apples or dogs aren't going to be an issue. And there will always be a lot of grey area in what is "original enough". There just seems to be a lack of facts in general in situations like that in the art communities I'm part off. So I'm attempting to find some and give people some general idea of what they can do. It seems it's probably in people's best interest *not* to post their ideas and characters until their projects are complete if they don't want to run the risk of anything being taken.

Title: Re: Copyright protection of fictional characters
Post by Isaac Clark on Aug 3rd, 2005, 4:09am
Assuming a fictional subject, redrawing the subject in a new pose
is still going to require copying from the original drawing because
there is no other source for knowing what the character looks like.

Taking credit for a character is something a little different from copyright
infringement.  Plagiarism can occur with or without copyright
infringement and can include material that is not even protectable
under copyright.   But plagiarism while certainly unacceptable
social behaviour, is not always something that can be sued for.



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