Copyright And The Fictional Character

Provided they are sufficiently unique, fictional characters can be protected as 'derivative works' separately from the stories they are featured in. Courts have established the following two tests to determine whether fictional characters merit copyright protection:

1. the "story being told" test, which requires the character to actually constitute the story being told and not simply be a vehicle for telling the story; and

2. the "especially distinctive" test, also known as the "character delineation" test, which requires the character to be well developed and delineated with consistent, widely identifiable traits

The first case to suggest a test for whether or not characters can be copyrighted, Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc., 216 F.2d 945 (9th Cir.1954), stated that literary characters are entitled to copyright protection if the character constitutes "the story being told;" however, if the character is "only the chessman in the game of telling the story" he is not entitled to copyright protection. Id. The Court ruled that Dashiell Hammett did not lose the right to 're-use' the characters, including detective Sam Spade, by assignment of the story The Maltese Falcon. The Court reasoned that "historically and presently detective fiction writers have and do carry the leading characters with their names and individualisms from one story into succeeding stories."

The "especially distinctive" test was articulated in Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir.2003). The Ninth Circuit explained that...