Can literary characters be copyrighted?: A Reformulation of the “Especially Distinctive” Test-I

We bring to you a two part post by our Spicy IP Fellowship applicant, Prateek Surisetti in which he analyses through US and Indian case law whether literary characters can be copyrighted.


When can a literary character be copyrightable? There are two well-known tests that are used to determine the copyrightability of a literary character. We have earlier on the blog discussed through case law the evolution of the “Especially Distinctive” Test and the “Story Being Told” Test. In “D.C. v. Towle”, the 9th Circuit Court, considered the “Especially Distinctive” Test and reformulated it into a neat three stage test. I shall be dealing with two issues:

(1) The “Especially Distinctive” Test and its Reformulation (A Descriptive Endeavour) and

(2) Criticism of the “Story Being Told” Test and the Indian Status.

In this post, I will be dealing with issue (1). The aim of this post is to merely inform the reader about this recent development in law. That said, prior to discussing the reformulation, I shall take this opportunity to help the reader acquire a considerable grasp over the “Especially Distinctive” test.

At the heart of the debate lies the idea/expression divide. Copyright protects unique expression, but does not protect mere ideas or themes. Though the concept itself is incredibly abstract, case law has helped make it far more concrete.

The first test of such a kind was the Nichols test discussed in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121, 7 USPQ 84 (2d Cir. 1930) : A character is copyrightable if it is distinct enough. The Court established the following: ‘‘the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.’’ Subsequent cases, have built on this. A quick review of these principles would be beneficial.

Courts have defined a “character” as an “aggregation of the particular talents and traits his creator selected for him” (Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231, 243, 211 USPQ2d 97 (2d Cir. 1983).). When these particular talents and traits can be deemed to be expressive elements as opposed to mere themes or ideas, then the character can be provided protection. Otherwise, the character upon publication becomes “instantly available for public exploitation” (Eldred v. Ashcroft, 537 U.S. 186, 219, 65 USPQ2d 1225 (2003) (65 PTCJ 224, 1/17/03).

Overtime, Courts have evolved specific characteristics of copyrightable characters. There are certain characteristics which require a judgment call and a few others where the call is far more objective. One of the characteristics of the former kind require characters to be “sufficiently delineated” with “consistent, widely identifiable traits”. Now, let us look at the more concrete factors which aren’t as ambiguous.

Objective Considerations

Purely literary characters are ordinarily not provided with protection. While literary characters do have conceptual characteristics, they lack a physical representation. Even though literary characters can be vividly described, graphic representations hold more weight than just “word portraits” (Warner Bros. v. CBS, 216 F.2d at 946-48). So, copyrightable characters should possess “physical as well as conceptual qualities” as they have a higher chance of containing unique elements of expression.

Also, those characters that have made multiple appearances and are a significant part of popular culture have a higher chance of gaining protection. This is because the multiple appearances aid in delineating a character’s qualities to a greater extent. This can be seen impliedly in the judgment of the James Bond case (MGM v. American Honda, 900 F. Supp. at 1291-92).

That said, though an iconic status is a significant factor, it is not a prerequisite for protection. For example, a character called Bill was provided with protection despite appearing in three commercials alone. His character was considered to be delineated enough (JB Oxford & Co. v. First Tennessee Bank NA, 427 F. Supp. 2d 784, 787, 799-800, 80 USPQ2d 1168 (M.D. Tenn. 2006) (71 PTCJ 726, 4/28/06). Furthermore, significance in popular culture alone doesn’t lead to protection. One such example is that of the famous Sam Spade from the Maltese Falcon. He wasn’t deemed to be a copyrightable character, despite enjoying considerable popularity (Warner Bros. v. CBS, 216 F.2d at 946-48). We shall go into this case in greater detail in the subsequent post.

Factors Mitigating Significance of Visual Appearance

Before moving further, there is one other point which remains to be discussed. It is common knowledge that the character of James Bond has been portrayed by multiple actors over a course of approximately two dozen movies. But despite the character’s changing appearance, Bond has been deemed to be a copyrightable character. This is because the Court felt that his fundamental characteristics (“overt sexuality” and “marksmanship” to name a few) have remained constant over a considerable time period. Therefore, change in physical qualities alone does not negate the possibility of making a character protected.

The Eighth Circuit Court has explicitly stated so: “…the presence of distinctive qualities apart from visual appearance can diminish or even negate the need for consistent visual appearance” (Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 599 n.8 (8th Cir. 2011). Also, in the Halicki case (Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213, 1225, 89 USPQ2d 1001 (9th Cir. 2008)), the Court while ascertaining the eligibility of a car “Eleanor”, put no significance on the fact that the car had changed in appearance over time. Its other qualities were more pertinent in the analysis.

Stock Characters

Now that we have discussed what is required of a copyrightable characters, let us have a brief look at the kind of characters that cannot be given protection. Stock characters are considered to be mere representation of ideas and not considered to be forms of unique expression. Essentially those characters who are commonly used in a particular theme or genre and are “rudimentary”, “commonplace”, “standard” “unavoidable” (Gaiman et. al. vs. McFarlane et. al.). Such as Satan in Christianity based novels, handsome doctors in romance novels, et cetera.

Now, that you have been acquainted with the basic principle, I shall proceed to deal with the reformulation developed by the 9th Circuit Court in D.C. v. Towle. In this case, the Court was deciding upon whether the Batmobile was a copyrightable character.

The Reformulation

The Court came up with three conditions that need to be satisfied to provide protection to a character. Note that this method is only an attempt at structuring the precedents into a standard test and not at all a divergence from set principles. I shall reproduce the significant text used in the judgment over here.

Condition 1: “… the character must generally have ‘physical as well as conceptual qualities.’

Condition 2: “the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears…Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.

Condition 3: “the character must be “especially distinctive” and “contain some unique elements of expression.”… Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard”.

Next, the Court applied this three pronged test to the Batmobile. Using the same justification as the District Court, the Appellate Court held that the Batmobile satisfied all three prongs of the test. It reviewed all the traits of the Batmobile in depth, but I shall not go into it as it would reap little for the reader.

While getting into the nitty gritty of Batmobile’s traits might be a significant exercise for the Court, it provides the legal analyst with little to derive. A more significant discussion would be that of the exclusion of the (earlier mentioned) “Story being told” test. This test, despite being used multiple times in earlier decisions, finds no mention in the D.C. v. Towle Judgment and I shall discuss it in the next blog post.

Chief References:

District Court Judgment, Copyright Protection for Fictional Characters ASB and EWM.

Image from here


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