Staying in character, legally speaking – the basics of protecting a character

This photo was shared under the Creative Commons Attribution License and was taken from the Flickr Photostream of Jordanhill School D&T Dept
This photo was shared under the Creative Commons Attribution License and was taken from the Flickr Photostream of Jordanhill School D&T Dept

Did you know characters (and this time I mean the non-alpha numeric fictional kind) are copyrightable? Well they ought to be right– they help tell a story, give you role models to look up to and can potentially stick with you for the rest of your life. If you happen to be a writer, illustrator, scriptwriter or graphic novelist who just created a great character – this post is for you.

Broadly speaking, characters can be distinguished into two types – graphic or visual; and literary. The former basically refer to characters that can be recognized and defined in some kind of illustrative and visual sense. The latter refers to characters that are described through words and the visuals of which, are left to the reader’s imagination.

Another interesting thing to remember about characters – their most important aspects can be broken down into three basic elements, courtesy David B. Feldman’s work titled “Finding a Home for Fictional Characters: A Proposal for Change in Copyright Protection” published in Volume 78, Issue 3 of the California Law Review in 1990 [David B. Feldman, Finding a Home for Fictional Characters: A Proposal for Change in Copyright Protection, 78 Cal. L. Rev. 687 (1990)]. These basically are the (1) the character’s name (2) a visual representation or a description of the character’s physical attributes and (3) characterization or the character’s personality traits and behavior.

So I can get any character I create copyrighted? Really?

Well not every character is eligible for copyright protection. It’s clear that the character needs to satisfy certain specific requirements before it can be considered eligible for copyright protection. Broadly speaking, it’s important to remember that you can consider copyrighting a character that is distinct in terms of visual or descriptive attributes, and a character that actually has a relatively important role to play in the plot of the series or story the author is trying to tell.

This means that you can’t actually copyright the characters that exist on the periphery – the shifty looking janitor, the suspicious butler, the glamorous sexy siren, the naïve school kid passer-by – all these characters are usually not very developed in the story line (visually or literally) and might serve a significant purpose, but a limited one at best. These are known as stock characters and are basically archetypal characters that you see in most stories. The reason why they are not eligible for copyright is because making them exclusive to one or two authors, automatically curtails the creative freedom of so many others seeing as how frequent and common the use of stock characters is, in so many works of art. (Sortof reminiscent of the Scenes a faire doctrine that you might have come across when reading about ideas versus expressions in copyright law. Don’t know what I’m talking about – you can read all about it here).

So what makes a character eligible for copyright protection?

A character becomes eligible for copyright protection so long as it is

(a)   Distinctive in appearance

(b)  Well developed

(c)   Described with great precision or has been sufficiently delineated and

(d)  Plays an important role in telling the story it is a part of.

The courts in various countries (like the USA, UK and India) settled on the above qualifiers after trying to resolve different cases that have involved figuring out character copyright ownership disputes between famous studios and writers. If you’re interested in reading more about these cases, then you can find an easy made-for-you tabular summary right here.

Do the same rules apply to visual and literary characters?

The rules are the same but traditionally, Courts have been less enthusiastic about awarding literary characters a copyright when compared to visual or graphic characters. The logic goes back to the idea-expression dichotomy in copyright law; copyright law will only allow you to protect the expression of an idea, but never the idea itself. When your character has been portrayed with a distinct visual appearance, the law is ready to consider that your idea of the character has transformed itself into an expression and so, is now eligible for some kind of legal protection. On the other hand, if your character is literary and a large part of its visual make-up is left to the reader’s imagination – well you can see how lawyers and Courts might find it easier to argue that such a character is more of an idea, rather than an actual, expression of the idea. In other words, it might be harder to get a copyright over a literary character rather than a graphic or visual character.

This photo was shared under the Creative Commons Attribution license and was taken from the Flickr Photostream of muellermartin
This photo was shared under the Creative Commons Attribution license and was taken from the Flickr Photostream of muellermartin

Wait, so how does idea-expression stuff fit into character copyrights?

Let’s say you’ve come up with a telekinetic super heroine – you draw her to look like a Caucasian woman with an athletic build, dressed in a blue figure hugging costume with a purple cape and the letters TG printed on her cape. She’s Telekinetic Girl and her super powers include being able to move objects with her mind. Now let’s say there’s this graphic novelist who also creates a telekinetic super teen heroine – she draws her to look like an Asian teenage girl, with a slim build, dressed in a pair of jeans and a t-shirt with the letter T printed on the back of her shirt, enclosed in a triangular boundary. This heroine has no secret super hero name – she goes by her normal name, Jane and Jane also has the power to move objects with her mind.

So would you say that the graphic novelist could sue you or vice versa for copying each other’s characters? Let’s assume that both Telekinetic Girl and Jane are well-developed characters and have a huge role to play in actually taking their respective story lines forward. Also even though both characters have telekinetic powers and are super heroines, they have been portrayed in distinct visual ways.

(1)  Distinct Expression – Jane and Telekinetic Girl look different. This is a big deal because now it’s obvious that the two characters are two different expressions of a similar idea. Since the two characters have been expressed differently, they are both eligible for copyright protection and neither creator can point a finger at the other screaming “You copied me!”

(2)  Same idea – Sure Jane and Telekinetic Girl are both super heroines with telekinetic powers, but that’s ok by the law since the idea of a telekinetic super heroine is just that – an idea, and as we know now, the law cannot extend protection or exclusivity to an idea. This is why there are so many super heroes with the same kind of powers but end up looking very different from one to the next.

(3) No visuals – So let’s say Telekinetic Girl was more of a literary character than a visual one (she was never drawn, but was described as part of a story). Now do you see how much harder it is to prove that Telekinetic Girl and Jane are different in terms of expression? By being on paper alone, Telekinetic Girl seems more convincing as an idea rather than as a specific, uniquely identifiable expression of that idea.

So remind me, why should I think about legally protecting a character?

Well, why not? Creating a good character is an achievement, both artistically and commercially. By protecting your character by means of a copyright or by treating it as a separate intellectual property, you make sure that your character does not get misrepresented in any way or that you can benefit from licensing the use of your character to another artist or a company interested in using your character to endorse their products or services. In other words, you can either prevent the sale of a lunch box with your characters’ face printed all over it, or you could get some money of it – whichever you like – all because you own the copyright over the character.

How easy is it to get a character copyrighted and when do you actually get the rights to it?

To be fair, protecting a character is still a little loosy-goosy in terms of actually finding which category you should seek copyright protection under (The different categories are here). This is not to say that there haven’t been enough artists who have sought copyright protection for their characters both in India and abroad, but the real message to take away from this discussion is to accept the fact that the character you’ve created is also part of your intellectual property, and so you ought to be clear about what you want to do with it, especially in a commercial sense.

It’s important to also understand that you cannot copyright a character under a completely different category. It’s a little tricky because while you can copyright the visual appearance of a character under the category of an artistic work, this protection does not extend to the personality traits of the character. In the case of a literary character, the character might be awarded protection separately or may be included as a part of the copyright over the literary work it is a part of.

If you happen to create the character during the course of your employment under someone or a company, then like most work-for-hire situations (which you can read about here), you have to understand that your employer will get the rights to your character. If this is not what you want or if you happened to have created the character prior to meeting the publisher or television series creator, whose series you are now going to feature your character in – it makes sense to clarify at the earliest, whether you want to continue owning the rights over your character or whether you’re ok with assigning the rights over it to whoever else you’re working with.

Ok, so what do I really need to remember as an artist?

If you’re looking to copyright a character that you’ve created, then make sure it is as well-developed and visually unique as possible. Also remember, a character that actually helps tell the story is the character that is most eligible for copyright protection. Do not bother trying to protect stock characters or generic characters – the law doesn’t help you with that.

If you’re planning on collaborating or working for another artist, publication, television network, online resource or any company that’s interested in the character you’ve created, then make sure that your agreements (formal or informal) make it explicitly clear that you will continue to own the rights to your character – this is important if you want to continue exercising creative control over your character, along with being the beneficiary of any licensing agreements for the use of your character.

Phew, that was a long post – but if you’re interested in learning more, or if you have a specific query about fictional characters that you’ve created or are interested in licensing the use of, then go ahead and leave a comment or better yet, get in touch with me.


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