Character and Franchise Rights Checklist: Delineation Evidence, Chain of Title, Layered Protection, and Licensing Controls

By Casey Scott McKay · 2024-12-17

This checklist runs a character or franchise from evidence-building through diligence, protection, licensing, and enforcement. It opens with the delineation record that makes a character provable and the element table that decomposes ownership question by question. It works chain of title through employment status, signed instruments, joint authorship, recordation, and termination arithmetic, and marks the gates that must clear before rights are asserted or a transaction closes. It then covers the layered protection sequence, the licensing controls that keep exclusivity intact, and the enforcement triage that keeps a programme proportionate. Each item states why it matters and the trap that catches people who skip it.

IP and Technology > Copyright | Checklist | Published 17 December 2024 - Updated 9 May 2026 | Casey Scott McKay - marksy.us

Summary. This checklist runs a character or franchise from evidence-building through diligence, protection, licensing, and enforcement. It opens with the delineation record that makes a character provable and the element table that decomposes ownership question by question. It works chain of title through employment status, signed instruments, joint authorship, recordation, and termination arithmetic, and marks the gates that must clear before rights are asserted or a transaction closes. It then covers the layered protection sequence, the licensing controls that keep exclusivity intact, and the enforcement triage that keeps a programme proportionate. Each item states why it matters and the trap that catches people who skip it.

Keywords: character checklist · franchise diligence · delineation evidence · character bible · element table · chain of title · work made for hire · joint authorship · termination notice · public domain increment · trademark classes · design patent merchandise · style guide · approval workflow · quality control record · royalty audit · category map · customs recordation · enforcement triage · licensee onboarding

How to use this checklist

| Phase | What it covers | |---|---| | 1 | Define the character | | 2 | Build the delineation record | | 3 | Build the element table | | 4 | Authorship of each source work | | 5 | Transfer instruments | | 6 | Joint authorship exposure | | 7 | Recordation and priority | | 8 | Termination arithmetic | | 9 | The public domain increment | | 10 | Copyright registrations | | 11 | Trademark portfolio | | 12 | Design patents and trade dress | | 13 | Publicity and likeness | | 14 | The licence template | | 15 | Category map and grants | | 16 | Approvals and style guide | | 17 | Quality control record | | 18 | Royalties and audit | | 19 | Termination and reversion | | 20 | Enforcement triage |

Boxes marked [Gate] must clear before rights are asserted, a licence is signed, or a transaction closes.

The matter. A media company acquired a character with fifty years of history and three sets of creators. The purchase agreement assumed a single chain of title. The element table found four gaps, one served termination notice, and a credited collaborator with no assignment — and the price moved.

Phase 1. Define the character

[ ] [Gate] Write the character in one sentence. If the sentence describes a type, the claim is to an idea.
- Why. 17 U.S.C. § 102(b) excludes ideas, and Nichols v. Universal Pictures makes specificity the currency of protection.
- Trap. Demand letters describing "a brilliant eccentric detective" invite a motion that the plaintiff claims an unprotectable type.
[ ] Write the character in a paragraph of specifics. Appearance, traits, speech, history, relationships, signature methods.
- Why. The paragraph is the protectable thing, and it is what gets compared in an infringement analysis.
- Trap. Clients believe the sentence is what they own. It never is.
[ ] Identify which elements are genre convention. Stock attributes and scènes à faire come out.
- Why. Filtration happens whether you do it or a court does, and doing it first produces a credible claim.
- Trap. A complaint that lists unprotectable traits as evidence of copying reads as overreach and colours the whole case.
[ ] State whether the character is visual or purely literary.
- Why. DC Comics v. Towle part one contemplates physical as well as conceptual qualities; purely literary characters face the harder path descending from Warner Brothers Pictures v. Columbia Broadcasting.
- Trap. Assuming a famous literary character is easy to protect.

Phase 2. Build the delineation record

[ ] Create or update the character bible. Dated, versioned, controlled.
- Why. It is the primary evidence of delineation and the operational reference for licensees.
- Trap. Bibles created after a dispute starts carry less weight and look exactly like what they are.
[ ] Produce model sheets and turnarounds for visual characters.
- Why. They register as visual art and give a clean deposit far better than a frame grab.
- Trap. Registering only the film or comic leaves the deposit ambiguous about what the character looks like.
[ ] [Gate] Build the appearance log. Every work, date, medium, traits displayed.
- Why. Part two of Towle requires recognisability as the same character whenever it appears, and consistency must be shown.
- Trap. Daniels v. Walt Disney shows what happens when consistency and distinctiveness are asserted rather than demonstrated.
[ ] Write the distinctiveness memorandum. Which elements are unique to this character.
- Why. Part three of Towle requires especially distinctive elements of expression.
- Trap. Fame is not distinctiveness of expression, and the two get conflated in every client conversation.

Phase 3. Build the element table

[ ] [Gate] Enumerate distinctive elements from the current depiction. Name, appearance, costume, catchphrase, ability, signature object, associates, origin.
- Why. Ownership is one question per element, not one question per character.
- Trap. Treating the character as a single asset hides the gaps.
[ ] Identify the work in which each element first appears, with date.
- Why. The first-appearance work controls that element's ownership and its public domain status.
- Trap. Elements developed gradually across works are the contested cases; record the ambiguity rather than resolving it optimistically.
[ ] Add a status column: clear, clouded, public domain.
- Why. This is the output the business and the deal team actually use.
- Trap. Leaving status blank for hard elements. Blank means clouded.

Phase 4. Authorship of each source work

[ ] Determine employee or contractor for each contributor.
- Why. Community for Creative Non-Violence v. Reid supplies the agency test, and the answer differs between contributors on the same work.
- Trap. Assuming everyone on a masthead was an employee.
[ ] For contractors, check the work-made-for-hire requirements. Enumerated category under 17 U.S.C. § 101 and a signed writing.
- Why. Both are required; neither is presumed.
- Trap. A "work for hire" recital in an invoice does not satisfy either element for a work outside the enumerated categories.
[ ] Record the result per work, not per person.
- Why. The same person may be an employee on one work and a contractor on another.
- Trap. Global conclusions about a creator's status.

Phase 5. Transfer instruments

[ ] [Gate] Locate a signed writing for every transfer of exclusive rights.
- Why. 17 U.S.C. § 204 requires it.
- Trap. An oral assignment yields at best an implied non-exclusive licence, which does not support an exclusive licensing programme.
[ ] Check that each instrument covers the rights actually asserted.
- Why. Assignments limited to a medium, a territory, or a term are common in old franchises.
- Trap. Reading the recital and not the granting clause.
[ ] Obtain confirmatory assignments where instruments are missing or ambiguous.
- Why. Remediation is cheaper before a transaction than during one.
- Trap. Approaching a creator for a confirmatory assignment during a live deal tells them exactly how much leverage they have.

Phase 6. Joint authorship exposure

[ ] [Gate] List every credited collaborator without a signed assignment.
- Why. Gaiman v. McFarlane confirms that different kinds of contribution can combine into joint authorship.
- Trap. A joint author may grant non-exclusive licences without consent, subject to accounting — which destroys the exclusivity you have sold.
[ ] Assess whether the contribution was independently copyrightable.
- Why. Ideas and suggestions do not create joint authorship; expression does.
- Trap. Dismissing a contributor whose "notes" included specific character traits now in the bible.
[ ] Resolve or price the exposure.
- Why. A quitclaim, a settlement, or a design-around are the options, and all three cost less than a licensee's indemnity claim.
- Trap. Hoping the collaborator never learns the character became valuable.

Phase 7. Recordation and priority

[ ] Check recordation of assignments at the Copyright Office.
- Why. 17 U.S.C. § 205 gives constructive notice and priority between conflicting transfers.
- Trap. Old franchises frequently have unrecorded chains, and a competing recorded transfer can take priority.
[ ] Record any unrecorded instrument now.
- Why. Recordation is cheap and the priority benefit is real.
- Trap. Waiting until the dispute makes it urgent.
[ ] Check for recorded security interests.
- Why. Copyright security interests are recorded at the Copyright Office; trademark and patent interests at the USPTO for notice, with Article 9 perfection.
- Trap. An unreleased lien from a financing a decade earlier.

Phase 8. Termination arithmetic

[ ] [Gate] Calculate every termination window. 17 U.S.C. § 203 for post-1977 grants, 17 U.S.C. § 304 for pre-1978 grants.
- Why. Termination is inalienable and cannot be waived by contract.
- Trap. Diarying the effective date and missing the notice window, which opens years earlier.
[ ] Check whether any notice has been served.
- Why. A served notice is a material fact in any transaction.
- Trap. Sellers who do not volunteer it.
[ ] Identify who holds the termination interest.
- Why. Statutory successors are defined, and the percentages determine who must join.
- Trap. Assuming an estate speaks for all heirs.
[ ] Note the derivative works exception.
- Why. Derivative works prepared before termination may continue to be utilised, but new ones may not be prepared.
- Trap. Reading the exception as permitting a continuing franchise.

Phase 9. The public domain increment

[ ] [Gate] Mark each element with its source work's copyright status.
- Why. Klinger v. Conan Doyle Estate holds that only incremental expression from still-protected works remains owned.
- Trap. Asserting the whole character when part is free invites a fee award under 17 U.S.C. § 505.
[ ] Check restoration for foreign-origin works.
- Why. 17 U.S.C. § 104A, upheld in Golan v. Holder, may have restored rights that lapsed for formality failure.
- Trap. Concluding a foreign work is free because the US publication lacked notice.
[ ] Check the X One X angle.
- Why. Public domain promotional material does not licence reproducing the character as depicted in protected works.
- Trap. Treating a free poster as a licence to the film's depiction.
[ ] Diary the dates on which further elements go free.
- Why. 17 U.S.C. § 302 and the pre-1978 rules make this arithmetic, not speculation.
- Trap. Discovering the schedule from a competitor's launch announcement.

Phase 10. Copyright registrations

[ ] [Gate] Register the foundational works. The work of first appearance and each work introducing a significant element.
- Why. 17 U.S.C. § 411 and Fourth Estate Public Benefit Corp. v. Wall-Street.com require the Register to have acted before suit.
- Trap. Discovering at filing that the key work was never registered and waiting months for action.
[ ] Register model sheets and character designs separately as visual art.
- Why. A clean visual deposit is far better evidence than a frame grab.
- Trap. Relying on the film registration to establish what the character looks like.
[ ] Register within three months of publication where possible.
- Why. 17 U.S.C. § 412 conditions statutory damages and attorney's fees on registration before infringement or within that window.
- Trap. Late registration is a permanent remedial handicap, not a curable defect.
[ ] Verify application accuracy on authorship, work-for-hire status, and publication date.
- Why. 17 U.S.C. § 411(b) and Unicolors v. H&M Hennes & Mauritz address inaccurate information; knowing inaccuracy invalidates.
- Trap. Boilerplate work-for-hire claims on works by contractors outside the enumerated categories.
[ ] For pre-1978 works, pull the renewal registration record.
- Why. Renewal records prove both subsistence and ownership, and frequently show renewal taken by someone else.
- Trap. Assuming the current claimant's chain matches the renewal claimant.

Phase 11. Trademark portfolio

[ ] [Gate] Map planned merchandising categories to international classes.
- Why. The portfolio must match the plan, not the character's origin medium.
- Trap. Registrations in class 16 only, while the revenue is in classes 25 and 28.
[ ] File intent-to-use applications before announcement.
- Why. 15 U.S.C. § 1051(b) establishes constructive use priority on later registration.
- Trap. Announcing first and filing second, which is an invitation to a squatter.
[ ] Check specimens for ornamentality.
- Why. A large chest print is decoration; a hangtag, label, or packaging use is source-identifying.
- Trap. Repeated refusals that delay registration past launch.
[ ] Diary maintenance filings. 15 U.S.C. § 1058 declarations and 15 U.S.C. § 1065 incontestability.
- Why. A lapsed registration on the principal class takes years to rebuild.
- Trap. Docket systems that track applications but not post-registration deadlines.
[ ] Audit for non-use exposure.
- Why. 15 U.S.C. § 1127 presumes abandonment after three consecutive years of non-use, and expungement and reexamination proceedings target unused goods.
- Trap. Over-broad identifications filed years ago that nobody has revisited.
[ ] File in principal foreign markets.
- Why. Most systems are first-to-file, and 15 U.S.C. § 1141 implements the Madrid route.
- Trap. Central attack within the first five years if the basic application fails.

Phase 12. Design patents and trade dress

[ ] [Gate] File design patents on merchandise designs before public disclosure.
- Why. 35 U.S.C. § 171 protects ornamental designs; 35 U.S.C. § 102 gives a one-year US grace period and most foreign systems give none.
- Trap. A reveal at a trade show that destroys foreign rights before anyone consults counsel.
[ ] Check the drawings against the intended scope.
- Why. The claim is the drawings, and broken lines disclaim.
- Trap. Solid lines around features you would rather not require in an infringing product.
[ ] Assess trade dress separately.
- Why. Wal-Mart Stores v. Samara Brothers requires secondary meaning for product design; TrafFix Devices v. Marketing Displays bars functional features.
- Trap. Pleading trade dress that is really an attempt to perpetuate expiring copyright.
[ ] Note remedies. 35 U.S.C. § 289 total profits, subject to Samsung Electronics v. Apple on the article of manufacture.
- Why. Design patent remedies are unusually strong for merchandise.
- Trap. Forgetting the marking requirement at 35 U.S.C. § 287, which limits pre-notice damages.

Phase 13. Publicity and likeness

[ ] Identify any real-person component. Performer likeness, voice, or a character based on a living person.
- Why. Right of publicity is state law, varies substantially, and is separate from copyright.
- Trap. Assuming the copyright licence carries likeness rights.
[ ] Review performer agreements for digital recreation and synthetic performance.
- Why. Agreements written before those capabilities existed are silent, and silence is being litigated.
- Trap. Relying on a broad "all media now known or hereafter devised" clause to cover synthetic performance.
[ ] Run the preemption analysis where a state claim is asserted.
- Why. 17 U.S.C. § 301 preempts claims equivalent to copyright within its subject matter; publicity claims survive where they require an extra element.
- Trap. Pleading a publicity claim that is really a reproduction claim.
[ ] Remember Dastar v. Twentieth Century Fox.
- Why. 15 U.S.C. § 1125(a) is not an attribution right for creative contributions.
- Trap. Promising a creator credit enforcement the Lanham Act cannot deliver.

Phase 14. The licence template

[ ] [Gate] Define categories by enumerated product types, not by example.
- Why. Ambiguous categories are how two licensees end up making the same product.
- Trap. "Toys, including plush" reads to a licensee as everything toy-adjacent.
[ ] State that all rights not granted are reserved, and enumerate the key reservations.
- Why. New media, new territories, derivative fiction, and location-based entertainment are the ones that matter.
- Trap. Silence read as a grant when a new channel emerges.
[ ] Address online sale expressly in the territory clause.
- Why. An online storefront reaches every territory, and a territory-limited licence with unrestricted online rights contradicts itself.
- Trap. Two exclusive territorial licensees both selling worldwide online.
[ ] Tie exclusivity to minimum performance.
- Why. An exclusive licensee who does not sell blocks the category.
- Trap. No conversion right, so under-performance cannot be remedied without termination.
[ ] Include a present assignment of derivative depictions with further assurances.
- Why. Under 17 U.S.C. § 103 the licensee otherwise owns copyright in its own original contribution.
- Trap. Negotiating after termination to license your own character's newest depiction.
[ ] Address bankruptcy for both halves of the grant.
- Why. 11 U.S.C. § 365(n) covers intellectual property as defined at 11 U.S.C. § 101, which excludes trademarks; Mission Product Holdings v. Tempnology holds rejection is breach, not rescission.
- Trap. A single boilerplate clause that assumes both rights are treated alike.

Phase 15. Category map and grants

[ ] [Gate] Maintain a live category map. Category, licensee, territory, exclusivity, term, minimums.
- Why. It is the only reliable defence against overlapping grants.
- Trap. A map maintained in the business team's spreadsheet and never seen by legal before signature.
[ ] Review every proposed grant against the map before signature.
- Why. A fifteen-minute review prevents the most common licensing dispute.
- Trap. Deal urgency overriding the review, every time.
[ ] Record consents, coexistence agreements, and settlement constraints on the map.
- Why. These travel with the rights and restrict exactly the expansion the business plans.
- Trap. A coexistence agreement signed in 2009 that nobody in the current team has read.

Phase 16. Approvals and style guide

[ ] Publish a style guide and incorporate it by reference.
- Why. It defines on-model, and it is the daily operational document.
- Trap. A guide that exists in the creative team's files but is not contractually binding.
[ ] [Gate] Set the approval workflow. Concept, prototype, production sample; submission format; stated turnaround; deemed approval on silence.
- Why. Without deemed approval, licensees cannot plan production and will ship unapproved.
- Trap. Deemed approval with no carve-out for material departures from the guide.
[ ] Address style guide updates.
- Why. Approved SKUs need grandfathering and new ones need a transition period.
- Trap. Every guide update becoming a retroactive breach by every licensee.
[ ] Name an escalation decision-maker with a deadline.
- Why. Approval processes stall at the working level, and that is where resentment and unapproved product originate.
- Trap. Escalation to a committee that meets monthly.

Phase 17. Quality control record

[ ] [Gate] Keep an approvals log. Submission, date received, decision, date returned, comments.
- Why. It is simultaneously operational record and the evidence that defeats a naked licensing argument under 15 U.S.C. § 1127.
- Trap. Approvals conducted by email with no central record, reconstructed years later from inboxes.
[ ] Exercise inspection rights at least annually per licensee.
- Why. Rights never exercised are evidence of no control.
- Trap. Contractual inspection rights treated as decorative.
[ ] Retain approved samples.
- Why. They prove what was approved when a dispute is about what shipped.
- Trap. No retention policy, so samples are discarded on office moves.
[ ] Require approved manufacturer lists and flow-down obligations.
- Why. Unapproved factories are how licensed tooling becomes counterfeit supply.
- Trap. A licensee subcontracting without notice and no contractual hook to stop it.

Phase 18. Royalties and audit

[ ] Define net sales precisely, with a cap on total deductions.
- Why. Undefined deductions are where royalty leakage happens, and most of it is not fraud.
- Trap. "Customary trade deductions," which means whatever the licensee customarily deducts.
[ ] State whether advances are recoupable and guarantees payable regardless of sales.
- Why. They are different economics and drafting frequently conflates them.
- Trap. A guarantee described as an advance, credited twice.
[ ] [Gate] Include audit rights with a lookback, a frequency limit, and cost-shifting.
- Why. Cost-shifting on material underpayment makes audits economic and self-limiting.
- Trap. Audit rights with no cost-shifting, which are never exercised and therefore never deter.
[ ] Reconcile statements against the contract quarterly.
- Why. Reconciliation catches impermissible deductions long before an audit would.
- Trap. Statements filed without review because the numbers look plausible.

Phase 19. Termination and reversion

[ ] Define termination triggers. Material breach with cure, insolvency, missed minimums, unapproved product after notice.
- Why. Vague triggers produce disputes about whether termination was effective.
- Trap. Insolvency triggers that are unenforceable as ipso facto clauses under 11 U.S.C. § 365.
[ ] [Gate] Require a certified inventory before the sell-off period begins.
- Why. Without a cap, the sell-off period is indefinite in practice.
- Trap. A licensee manufacturing during the notice period to build sell-off stock.
[ ] Prohibit manufacture after termination and require destruction of tooling and artwork with certification.
- Why. Tooling that survives becomes the counterfeit supply chain.
- Trap. Destruction obligations with no certification requirement.
[ ] Require return or destruction of the style guide and confidential materials.
- Why. The guide is the operational specification for making convincing infringements.
- Trap. Digital copies retained indefinitely with no deletion certification.
[ ] Carve injunctive relief out of any arbitration clause.
- Why. Character disputes are about stopping product, not about damages.
- Trap. An arbitration clause that leaves you waiting for a panel while product ships.

Phase 20. Enforcement triage

[ ] Publish a fan use policy.
- Why. It reduces enforcement volume, preserves goodwill, and evidences controlled licensing.
- Trap. No policy, so every enforcement decision looks arbitrary.
[ ] [Gate] Set a written triage standard. Counterfeit, commercial infringement, fan work, de minimis.
- Why. Consistency is what makes enforcement defensible and manageable.
- Trap. Enforcement driven by whoever complains loudest internally.
[ ] Record marks with Customs under 19 C.F.R. § 133.1.
- Why. Border seizure is the most cost-effective anticounterfeiting tool available.
- Trap. Recordation lapsing with the underlying registration.
[ ] Consider fair use before sending copyright takedowns.
- Why. 17 U.S.C. § 512 supplies the mechanism and Lenz v. Universal Music requires the consideration; 17 U.S.C. § 512(f) creates exposure for misrepresentation.
- Trap. Automated character-matching that fires without human review.
[ ] Note the post-Jack Daniel's position on merchandise.
- Why. Source-identifying uses do not get the Rogers v. Grimaldi threshold, which strengthens trademark enforcement against merchandise.
- Trap. Assuming the same analysis applies to expressive uses within works.
[ ] Check limitations before delay becomes a problem.
- Why. 17 U.S.C. § 507 sets three years; Petrella v. Metro-Goldwyn-Mayer bars laches within it; Warner Chappell Music v. Nealy confirms damages are not separately capped where the claim is timely.
- Trap. Trademark claims, where delay does support laches and acquiescence.
[ ] Consider the Copyright Claims Board for low-value disputes.
- Why. Capped damages, lower cost, and no need for full federal litigation.
- Trap. Voluntary participation means a determined infringer can opt out.

Phase 21. The transaction file

[ ] Assemble the diligence pack. Element table, registration schedule, assignment chain, licence schedule, termination analysis, encumbrance search, litigation and opposition list.
- Why. This is what a buyer's counsel asks for, and having it ready shortens diligence by weeks.
- Trap. Assembling it under deal pressure, which is when the gaps get papered over rather than fixed.
[ ] Verify every schedule against the public register.
- Why. Schedules are frequently stale, and lapsed registrations do not announce themselves.
- Trap. Relying on the seller's spreadsheet.
[ ] Price the remediation. Confirmatory assignments, quitclaims, refilings, design-arounds.
- Why. These are costs, and they belong in the model.
- Trap. Post-closing discovery, which is a dispute rather than a negotiation.
[ ] Check anti-assignment clauses in outstanding licences.
- Why. Required consents give licensees leverage at exactly the wrong moment.
- Trap. Discovering the consent requirement after announcement.

Phase 22. The element table template

Use this structure. It is the single artefact everything else depends on.

| # | Element | First appearance | Date | Author(s) | Status of author | Instrument | Recorded | Termination window | Copyright status | Assessment | |---|---|---|---|---|---|---|---|---|---|---| | 1 | Name | Work A | 1938 | Smith, Jones | Employees | Employment | n/a | n/a | Public domain | Free; trademark only | | 2 | Costume | Work C | 1941 | Jones | Contractor | None located | No | 2029-2036 | Protected | Clouded — confirmatory assignment needed | | 3 | Catchphrase | Work F | 1953 | Lee | Employee | Employment | n/a | n/a | Protected | Clear |

[ ] One row per distinctive element, not per work.
[ ] Assessment column in plain language, because the business reads this and the lawyers do not own the decisions it drives.
[ ] Version and date the table, and name an owner responsible for keeping it current.
[ ] Re-run it annually and whenever a new work introduces elements.

Phase 23. The AI overlay

[ ] [Gate] Confirm human authorship for any element developed with model assistance.
- Why. Thaler v. Perlmutter and the Copyright Office's registration guidance require human authorship; purely machine-generated material is unprotectable and must be disclaimed.
- Trap. A flagship character element that turns out to be unprotectable, discovered at registration.
[ ] Retain the development record. Prompts, iterations, human selections and edits, contemporaneously.
- Why. It is the evidence of the human contribution and the basis for the registration claim.
- Trap. Reconstructing it months later, which reads as reconstruction.
[ ] Check vendor terms for output ownership, training on customer content, and infringement indemnity.
- Why. These vary substantially and determine whether the output is safely usable.
- Trap. A tool adopted by the creative team with no legal review and terms that claim training rights over submitted material.
[ ] Cover virtual goods in the class map where the plan contemplates them.
- Why. Character merchandise now includes digital items, and the trademark analysis after Jack Daniel's applies.
- Trap. A portfolio built for physical goods only.

Phase 24. Cadence

[ ] At each new work: update the bible, log new elements, register the work.
[ ] Quarterly: registration review, maintenance deadlines, new-category trademark filings, design patent filings before any planned reveal.
[ ] Annually: chain-of-title refresh, termination arithmetic re-run, non-use audit across classes, licensee inspection round.
[ ] On any transaction: full element table verification and encumbrance search.
[ ] On any dispute: filtration analysis before the demand letter, not after the answer.

Phase 25. Working with other advisers

[ ] Copyright counsel for chain of title, termination arithmetic, and registration strategy.
[ ] Trademark counsel for the class map, prosecution, oppositions, and foreign filings, with a standing instruction to file when the merchandising plan adds a category.
[ ] Design patent counsel with a disclosure gate before any reveal.
[ ] Litigation counsel early on contested public domain elements, because the framing of the protected increment determines the pleading.
[ ] Business affairs for the category map and approvals workflow, with legal reviewing category definitions before signature.
[ ] Insurance brokers for product liability and advertising injury cover and licensee certificate currency.
[ ] Archivists. For an old franchise, the person who can find the 1953 assignment is worth more than any lawyer on the file.

Phase 26. The one-paragraph brief

Character rights position — [character], [date]. The character comprises [N] distinctive elements. [N] are traceable to works now in the public domain and are free for third-party use; [N] are protected and owned outright; [N] are clouded pending [remediation]. Copyright registrations are in place for [list]; [N] works remain unregistered and are being filed. Trademark registrations cover classes [list] in [territories], matching [N] of [N] planned merchandising categories, with applications pending for the remainder. Design patents cover [N] merchandise designs, expiring [dates]. Termination windows under 17 U.S.C. § 203 and 17 U.S.C. § 304 open [dates]; [N] notices have been served. Outstanding exposure: [joint authorship / missing instrument / lapsed registration]. Recommended action this quarter: [list].

Phase 27. Three worked scenarios

Scenario A — the pitch that was not a character. A creator claims a studio stole four characters from a pitch deck describing anthropomorphized emotions with assigned colours and moods. The element table produces four rows and almost nothing to put in them: no consistent appearances, no traits demonstrated across works, no especially distinctive expression. Daniels v. Walt Disney is directly on point and the claim fails at part two and part three of Towle. The right advice is delivered in the first meeting, not after a year of discovery.

Scenario B — the collaborator who was never papered. A publisher's flagship character was co-developed in 1992 by a staff writer and a freelance artist. The artist's contribution — costume, silhouette, and signature object — is independently copyrightable and there is no signed instrument. Gaiman v. McFarlane supports a joint authorship claim. The artist could license a competitor non-exclusively subject to accounting, which would end the publisher's exclusive merchandising programme. A negotiated buy-out at a price reflecting the risk is cheaper than either litigation or the indemnity claims from existing licensees.

Scenario C — the franchise crossing the line. A character first published in 1929 has begun entering the public domain element by element. The element table shows the name, the basic silhouette, and two relationships are free; seventeen later elements are not. A competitor launches using the free elements. The correct response is not a demand letter asserting the whole character — that risks fees under 17 U.S.C. § 505 — but a precise analysis of whether the competitor's version incorporates any of the seventeen, combined with trademark enforcement under 15 U.S.C. § 1125 if the competitor's use is source-identifying after Jack Daniel's, and an acceleration of the plan to move commercial weight onto the marks.

Phase 28. Scoping and the client conversation

[ ] Ask what the client actually wants to do. Enforce, license, acquire, or launch. The checklist runs differently for each.
[ ] Set expectations on the element table's cost. For a franchise with fifty years of history it is weeks, not days, and most of it is archival research.
[ ] Say early that the world is probably not owned. Settings, systems, formats, and premises are largely unprotectable, and businesses built on the contrary assumption need to hear it before they scale.
[ ] Say early that part of an old character may be free. Klinger surprises clients, and the surprise is better delivered by counsel than by a competitor's launch.
[ ] Identify the decision the client is making. Diligence that does not change a decision is expensive reading.
[ ] Agree what "clouded" triggers. Remediation, price adjustment, carve-out, or acceptance — decided in advance, not element by element under pressure.

Phase 29. Metrics worth tracking

[ ] Element table coverage. Percentage of distinctive elements with a documented instrument. Target: 100 per cent, tracked quarterly.
[ ] Registration coverage. Works registered as a percentage of works published; classes registered as a percentage of classes sold in.
[ ] Approval turnaround. Median days from submission to decision, by licensee. Rising turnaround predicts unapproved product.
[ ] Approval log completeness. Percentage of shipped SKUs with a logged approval. This is the naked licensing defence, quantified.
[ ] Royalty variance. Reported royalties against contractual expectation, by licensee, quarterly.
[ ] Audit recovery. Recovery as a multiple of audit cost, which determines whether the audit programme is worth running.
[ ] Enforcement disposition. Volume by triage category and outcome, which shows whether the policy is being applied consistently.
[ ] Public domain runway. Years until the next tranche of elements goes free, reported to the board annually.

Outcome. The element table found twenty-three distinctive elements across four decades of works. Six traced to works now in the public domain, and the acquirer's model was adjusted accordingly. Four elements had no signed instrument from the contributor who introduced them, and confirmatory assignments were obtained for three before signing, with the fourth carved out of the representations and priced. One credited collaborator had a colourable joint authorship claim under Gaiman v. McFarlane; a quitclaim was negotiated. A termination notice under 17 U.S.C. § 304 had been served on a 1974 grant and had not been disclosed; the affected elements were identified and the purchase price adjusted. Trademark registrations covered three of the seven merchandising classes actually in the plan, and applications were filed for the remainder before announcement. The transaction closed with a documented understanding of what was owned, what was free, and what remained at risk — which is the only defensible basis for a licensing programme.

Key Authorities at a Glance

| Authority | Where it applies | |---|---| | 17 U.S.C. § 101 | Phases 4, 6 | | 17 U.S.C. § 102 | Phase 1 | | 17 U.S.C. § 103 | Phases 9, 14 | | 17 U.S.C. § 201 | Phases 4, 6 | | 17 U.S.C. § 203 | Phase 8 | | 17 U.S.C. § 204 | Phase 5 | | 17 U.S.C. § 205 | Phase 7 | | 17 U.S.C. § 302 | Phase 9 | | 17 U.S.C. § 304 | Phase 8 | | 17 U.S.C. § 104A | Phase 9 | | 17 U.S.C. § 411 | Phase 10 | | 17 U.S.C. § 412 | Phase 10 | | Nichols v. Universal Pictures | Phase 1 | | DC Comics v. Towle | Phases 1, 2 | | Daniels v. Walt Disney | Phase 2 | | Community for Creative Non-Violence v. Reid | Phase 4 | | Gaiman v. McFarlane | Phase 6 | | Klinger v. Conan Doyle Estate | Phase 9 | | Warner Brothers v. X One X | Phase 9 | | Silverman v. CBS | Phase 11 | | Jack Daniel's v. VIP Products | Phases 11, 20 | | 15 U.S.C. § 1127 | Phases 11, 17 | | 35 U.S.C. § 171 | Phase 12 | | 19 C.F.R. § 133.1 | Phase 20 |

The five things people get wrong

Treating the character as one asset. Ownership is per element, and the gaps hide in the elements nobody thought to list.

Asserting the whole character when part is free. Klinger makes this an expensive mistake, and fee exposure under 17 U.S.C. § 505 is real.

Missing the joint author. One collaborator with a colourable claim can license your competitor non-exclusively and end your exclusivity.

Diarying termination effective dates rather than notice windows. The window that matters opens years before the date the client has in the calendar.

Building a mark portfolio that does not match the merchandising plan. Registrations in classes you do not sell in are an expungement target; unregistered classes where you do sell are the exposure.