One Test to Rule Them All: Retiring the Dual Standard for Fictional Character Copyrightability in the Ninth Circuit

Authors

Kiersten Daly

Document Type

Note

Abstract

(Excerpt)

From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value in asserting ownership over fictional characters. Since characters, like stories, are products of ideas, they are considered intangible property and are thus governed by intellectual property law, specifically copyright. Given the potential for financial gain, there has been much dispute over the copyrightability of fictional characters.

While it is relatively straightforward to assert ownership over a film, television show, or novel under copyright law, it is more difficult to assert ownership over a character. Various circuit courts have taken different approaches to defining the scope of copyright protection for fictional characters. For example, the Ninth and Second Circuits, two of the most influential circuits for copyright law, employ slightly different approaches.