Owning a Character: Protectable Characters, Fictional Worlds, and the Line Between Idea and Icon
By Casey Scott McKay ·
A character can be protected independently of the work it appears in, and the tests courts use are narrower and more demanding than merchandising practice assumes. This article works the two surviving frameworks - the delineation standard descending from Nichols and the story being told test - and the three-part formulation in DC Comics v. Towle that now governs most visual character disputes. It explains why purely literary characters are harder to protect than visual ones, and why the incremental expression rule in Klinger means a character can be partly in the public domain and partly not. It covers fictional worlds, settings, and formats, the joint authorship problem that arises when characters are created collaboratively, and the trademark layer that outlives copyright entirely. It closes with what a chain of title for a character actually has to establish.
IP and Technology > Copyright | Article | Published 23 February 2024 - Updated 14 November 2024 | Casey Scott McKay - marksy.us
Summary. A character can be protected independently of the work it appears in, and the tests courts use are narrower and more demanding than merchandising practice assumes. This article works the two surviving frameworks — the delineation standard descending from Nichols and the story being told test — and the three-part formulation in DC Comics v. Towle that now governs most visual character disputes. It explains why purely literary characters are harder to protect than visual ones, and why the incremental expression rule in Klinger means a character can be partly in the public domain and partly not. It covers fictional worlds, settings, and formats, the joint authorship problem that arises when characters are created collaboratively, and the trademark layer that outlives copyright entirely. It closes with what a chain of title for a character actually has to establish.
Keywords: character copyright · delineation · Nichols v Universal · story being told test · DC Comics v Towle · three part test · conceptual qualities · especially distinctive · physical appearance requirement · literary versus visual characters · Klinger and incremental expression · fictional worlds and settings · formats and premises · Gaiman v McFarlane · joint authorship of characters · character trademark · Rogers v Grimaldi · Jack Daniel's source identification · merchandising and licensing · chain of title
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