Anaya Nolan
The use of fictional character names in creative works is a complex issue that often intersects with copyright and trademark laws. While character names in a book or story generally cannot be copyrighted, a fully delineated and well-defined character is protected under the author's copyright, and their name or likeness cannot be used without permission. Trademark law also plays a role, as fictional characters can acquire a secondary meaning, with Mickey Mouse being a notable example. In the US, trademark protection arises from consistent use in a commercial context, and registration strengthens legal protection. The delineation test and story-being-told tests help determine copyrightability, while the scenes-a-faire doctrine may preclude protection. The UK and EU have separate approaches, with the UK allowing fair dealing for parody or pastiche and the EU focusing on balancing interests and recognizing parody as noticeably different from the original work. Overall, the intersection of copyright and trademark laws with character names creates a complex legal landscape that varies across jurisdictions.
| Characteristics | Values |
|---|---|
| Can character names be copyrighted? | No, but a fully delineated and well-defined character is protected under copyright law, and their name or likeness cannot be used without the author's permission. |
| Can you use a character name in passing? | Yes, merely mentioning a character's name is not copyright infringement. However, using a character's name in a way that brings to mind the original character may be trademark infringement. |
| Can you own a fictional character? | Yes, in some countries, fictional characters can be protected separately from their underlying works as derivative copyrights, provided they are unique and distinctive. |
| Exceptions | Parody or pastiche is an exception to copyright infringement. |
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What You'll Learn
Character names are not protected by copyright law
In the United States, to avail of copyright protection, a work must be original, involving an element of creativity, and must be fixed in a tangible medium. There can be no copyright in mere ideas and facts, but only in the unique expression of the same. The Compendium of U.S. Copyright Office Practices defines a character as "a person, animal, or even an inanimate object that is used to portray the content of a dramatic work."
In cases of copyright infringement of a fictional character, a two-step test developed by the American Courts must be satisfied. Firstly, it must be established that the character in question is capable of being copyrighted. Secondly, it must be demonstrated that there has been an infringement of this unique expression. The delineation test and the story-being-told test are used to determine the copyrightability of the character, and the Court must check whether the character is precluded from being afforded protection by virtue of the applicability of the scenes-a-faire doctrine.
However, trademark law provides a clear path for protecting fictional character names. Trademark law protects names, logos, and slogans that identify and distinguish goods or services in the marketplace. Trademark law is concerned with the likelihood of confusion, whereas copyright law is concerned with the protection of the expression of ideas. Creators seeking to protect their fictional character names often turn to trademark law as a primary means of legal protection.
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Fictional characters can be protected by trademark law
Trademark law is concerned with the likelihood of confusion caused by a similar mark. For example, a robot with three legs, a half-sphere for a head, and blue and white ornamentation is protected under trademark law as it is Lucas's expression of a robot. Even creating a robot that brings R2-D2 to mind could be trademark infringement.
Characters such as Mickey Mouse have been protected under trademark law, as they have acquired a "secondary meaning", and the public would be likely to confuse a similar character with the original. Superman and Batman are also protected under trademark law. In India, trademark law recognises that fictional characters enjoy goodwill and provides relief for cases of 'character merchandising'.
Fictional characters can also be protected by copyright law, but only once they become a unique expression, for example, by adding certain attributes. The character must be an original work of authorship, possess creativity, and be fixed in a tangible medium of expression. The name and general idea for a character cannot be copyrighted, but the expression of the idea can be. For example, a gun-toting cyborg would not be considered copyright infringement of RoboCop, but if that cyborg looked and acted like RoboCop, it would likely be infringement.
Fictional characters can be protected separately from their underlying works as derivative copyrights, as long as they are unique and distinctive.
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Fictional characters can be protected by rights of publicity
Trademark law also protects fictional characters. To establish infringement of trademark law, it must be demonstrated that the fictional character has acquired a "secondary meaning", and that there is a likelihood of confusion caused by the defendant's mark, which is deceptively similar to the original. Mickey Mouse, for example, has been held to have acquired such a secondary meaning and is thus protected under trademark law.
In the United States, fictional characters can be protected by copyright law separately from their underlying works. This is based on the legal theory of derivative copyrights. Creators must prove that their characters are sufficiently unique and distinctive to merit protection. This protection extends to both characters that have been described in writing and those depicted in a visual or graphic form. However, it is important to note that copyright law does not protect ideas, only the original, fixed expression of that idea. Therefore, stock characters or archetypal elements are not protected as they are not unique in their expression.
In India, fictional characters are not explicitly mentioned as subject matter of copyright in the Copyright Act of 1957. However, recourse can be made to trademark law, which recognises that fictional characters enjoy goodwill, and provides relief for cases of 'character merchandising'.
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Fictional characters can be protected by dilution
Fictional characters can be protected by copyright, trademark, and unfair competition law, or some combination of these. However, copyright law does not protect ideas, only the original, fixed expression of that idea. For example, the idea of a gun-toting cyborg is not protected by copyright, but the expression of that idea in the form of RoboCop is.
In the United States, to avail of copyright protection, a work must be original and involve an element of creativity. It must also be fixed in a tangible medium. In addition, copyright protection is available to fixed expressions of fictional characters in literary, musical, dramatic, and artistic works. This means that characters can be separated from their original works and acquire a new life by featuring in subsequent works.
Trademark law can also be used to protect fictional characters. To determine infringement, it must be shown that the fictional character has acquired a "secondary meaning," and that there is a likelihood of confusion caused by the defendant's mark, which is deceptively similar to the original. For example, Mickey Mouse has been held to have acquired such a secondary meaning and is protected under trademark law.
Another avenue of protection for fictional characters is the law of dilution. Dilution is the gradual elimination of the distinctive image of a trademark in the minds of the public due to its use for non-competing goods. It can occur through blurring or tarnishing. Blurring refers to the unauthorized use of a character that could harm their reputation by blurring their ability to indicate one source. Tarnishing refers to the harm caused to a character's commercial value or public image. For example, in the case of It's Entertainment Inc. v. Arthur, the unauthorized use of Arthur costumes was found to cause dilution by blurring and tarnishing, leading to a loss of credibility, consumer interest, and public affection.
In conclusion, fictional characters can be protected by dilution, in addition to copyright and trademark law. Dilution provides an added layer of protection for fictional characters that have garnered immense goodwill and reputation, preventing their unauthorized use for undignified purposes. However, some commentators argue that such widespread protection could limit the public's use of the character and contravene the purposes of federal copyright law.
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Fictional characters can be protected by misappropriation
Fictional characters can be protected separately from their underlying works. Creators must prove that their characters are unique and distinctive to merit protection. The more specific and less generic a character is, the more likely they can receive protection. For example, a person with superpowers who wears a cape and fights crime is not protectable because it is too generic. However, if this character has a secret identity as a news reporter and a crush on Lois Lane, they can become protectable under copyright law.
To argue for misappropriation of a fictional character, the plaintiff must demonstrate three things: firstly, that they have invested a substantial amount of time and effort into the character; secondly, that the defendant has appropriated the product of such investment; and thirdly, that such appropriation has caused a loss to the plaintiff.
Courts are generally uncomfortable affording protection to fictional characters, especially for artistic rather than commercial purposes. The scope of legal protection is not broad for fictional characters, and copyright law is the dominant form of protection. Unless there is blatant misappropriation of a fictional character's name and exact duplication of a character's characteristics, the damages are often more artistic and subjective rather than commercial, and courts may not know how to compensate for these types of damages.
Trademark law may also be relevant to the protection of fictional characters. Trademark rights may be enjoyed if a fictional character has acquired a "secondary meaning," and there is a likelihood of confusion caused by the defendant's deceptively similar mark. For example, Mickey Mouse has been held to have acquired such a secondary meaning and is protected under trademark law.
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Frequently asked questions
Yes, mentioning a character's name does not infringe copyright. However, using the name in a context that could cause confusion with the original work may infringe trademark law.
Copyright law protects original works of authorship, including unique expressions of fictional characters. Trademark law, on the other hand, focuses on preventing consumer confusion by protecting source-identifying marks.
In the case of Raja Pocket Books v Radha Pocket Books, the Delhi High Court found that the plaintiff's copyright in their comic character "Nagraj" had been infringed by the defendant's character "Nagesh" due to similarities in their names, visual representations, and conceptual characteristics.
Yes, parody, pastiche, and fair dealing are recognized exceptions to copyright infringement in some jurisdictions. However, the specific application of these exceptions may vary across different legal systems.
Using a character name as your pen name could potentially result in trademark infringement or dilution. Additionally, it may give readers the impression that you are associated with the original author or attempting to deceive them. It is generally advisable to create a distinct personal brand instead of relying on another's character.
