Joseph Perry, Esq.
Can You Copyright Your Characters?
Congratulations! You’ve completed your novel. But now you’re wondering how to protect your characters. One way to do that is to try to copyright them.
Copyright law protects original works of authorship. For example, your novel, play, memoir, and essay are all protected under the US Copyright Act. But what about characters? They’re not explicitly protected by statute in the Copyright Act; however, over the past century, case law established by judges has developed in such a way that characters can be protected under copyright law in certain circumstances. For example, federal appeals courts located in the entertainment capitals of the US (New York and Hollywood) have developed tests to determine whether in fact characters can be copyrighted. Below is a summary of those tests.
The Character Delineated Test
In 1930, the Second Circuit heard the case Nichols v. Universal Pictures, which concerned a 1922 play written by Anne Nichols called “Abie's Irish Rose.” The play was about a young Jewish man who marries an Irish Catholic girl against their families' wishes. Four years later, Universal Pictures produced “The Cohens and Kellys,” which was about an Irish man who marries a Jewish woman, with both families disapproving. Nichols sued Universal Pictures for copyright infringement, arguing the film had similar plot points.
The court stated that the less developed a character is, the less likely it can be copyrighted. This test came to be known as the "character delineated" test. Your characters have to be unique. They can't be stock characters. To give you a sense of what the court meant, here is what the court said regarding Nichols’ characters:
"Nor does she [Nichols] fare better as to her characters. It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman. The defendant has not taken from her more than their prototypes have contained for many decades. If so, obviously so to generalize her copyright, would allow her to cover what was not original with her.”
Essentially, allowing Nichols to copyright her characters would prohibit others from using similar stock characters. Think of your favorite genres. When you open your favorite romance, sci-fi, or fantasy novels, you have certain expectations. There are certain types of characters you know will appear every time (for example, the hopeless romantic in a rom-com). If you or any author were allowed to copyright stock characters, it would chill expression. The entire point of copyright law is to progress the arts and sciences. Granting copyright to characters at such an abstract level would regress the arts, not progress them.
A few decades later, the Ninth Circuit applied the same test developed in Nichols in the case Anderson v. Stallone concerning the Rocky franchise. Anderson wrote a treatment of “Rocky IV” and met with executives at MGM and Sylvester Stallone, but nothing came to pass. Later “Rocky IV” was released, and Anderson claimed Stallone and MGM used his script. So he sued for copyright infringement.
When answering whether the Rocky characters were protected under copyright law, the court stated:
"The Rocky characters are one of the most highly delineated group of characters in modern American cinema. The physical and emotional characteristics of Rocky Balboa and the other characters were set forth in tremendous detail in the three Rocky movies before Anderson appropriated the characters for his treatment. The interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie are central to all three movies. Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author. Plaintiff has not and cannot put before this Court any evidence to rebut the defendants' showing that Rocky characters are so highly delineated that they warrant copyright protection....If any group of movie characters is protected by copyright, surely the Rocky characters are protected from bodily appropriation into a sequel which merely builds on the relationships and characteristics which these characters developed in the first three Rocky movies. No reasonable jury could find otherwise...."
The Story Being Told Test
In 1954, the Ninth Circuit heard Warner Bros v. CBS, which held that the literary character Sam Spade was not copyrightable. It stated that a character could not be granted copyright protection unless it "constituted the story being told." In contrast, if a character is merely a “chessman in the game of telling the story," the court said it wouldn't be protected. The court believed Sam Spade was a "mere vehicle" that moved the story forward, so the character could not be copyrighted.
A few decades later, the Anderson court also wrestled with the “story being told test.” The court stated: "...[T]he Rocky characters were so highly developed and central to the three movies made before Anderson's treatment that they 'constituted the story being told.' All three Rocky movies focused on the development and relationships of the various characters. The movies did not revolve around intricate plots or story lines. Instead, the focus of these movies was the development of the Rocky characters. The same evidence which supports the finding of delineation above is so extensive that it also warrants a finding that the Rocky characters—Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie—'constituted the story being told' in the first three Rocky movies.”
\In addition to the tests above, the Ninth Circuit also heard a case Walt Disney v. Air Pirates, which involved the admitted copying of Disney's characters in adult "counter-culture" comic books. The court said that the Disney characters were copyrighted because they were visually depicted. They distinguished Air Pirates from Sam Spade because Sam was a literary character, and the Disney characters were visual. Cartoon characters have physical and conceptual qualities. Following the Air Pirates case, the visual nature is partly why Stallone won in his case as well.
So where does this leave you? How do you know if your character is “well delineated” or “the story being told”? “The story being told” test is a high bar to clear. Your character likely needs to constitute the entire work (i.e., the main part of the action). If your character doesn’t pass that test, you’re left with whether your character is “well delineated.” Ask yourself how identifiable and distinct your character is. It’s a big grey area from stock characters on one side of the spectrum to Rocky on the other end. So what are you to do? Try making your characters as unique and distinct as possible. This may be easier over an entire series rather than one book, as the character evolves. If there is a visual element, like in a graphic novel, comic book, or illustrated book, that may help your chances of copyrighting your characters, given the Air Pirates case.