Copyright protection is available to the creators of a range of works including literary, musical, dramatic and artistic works. Recognition of fictional characters as works eligible for copyright protection has come about with the understanding that characters can be separated from the original works they were embodied in and acquire a new life by featuring in subsequent works.
United States
In the United States, in order to avail of copyright protection, a work must be original that is, it must involve an element of creativity, and must be fixed in a tangible medium. Further, there can be no copyright in mere ideas and facts, but only in the unique expression of the same. US Copyright Statute of 1976 does not explicitly mention fictional characters as subject matter of copyright, and their copyrightability is a product of common law. Historically, the Courts granted copyright protection to characters as parts of larger protected work and not as independent creations. They were regarded as ‘components in a copyrighted works’ and eligible for protection as thus. Recognition of characters as independent works distinct to the plot in which they were embodied came about only in 1930 in the case of Nichols v. Universal Pictures. Following Nichols, the American judiciary has evolved two main tests to determine whether a character in a work can be eligible for copyright protection.
Well-delineated test
In Nichols, the United States Court of Appeals for the Second Circuit denied protection to the plaintiff's characters on the grounds that they were not “distinctly delineated”, but poorly developed. The plaintiff's characters of the Jewish gentleman and the poor Irish catholic girl he loved were regarded to be no more than mere ‘prototypes’. Judge Hand held that the less developed the character, the less the copyrightability of the same. Copyright protection shall therefore be enjoyed by a character provided it is well delineated. By applying this test, copyright protection was held to subsist in the character of Tarzan because it was found to be “sufficiently delineated.” Similarly, the character of Superman was held to be well delineated by virtue of embodying original literary expressions and incidents, and therefore deserving of copyright.
Under this approach, a three-step test is required to be followed. Firstly, the character must possess physical and conceptual attributes. Secondly, the character must be “sufficiently delineated” to be identified as the same character across multiple occasions. He must therefore show consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression. The consistency of a character's traits and attributes is considered as the key factor for whether the character qualifies for copyright protection.
Story being told test
The second approach was propounded by the United States Court of Appeals for the Ninth Circuit in Warner Bros. v. Columbia Broadcast Systems. The Ninth Circuit court ruled that a character can avail of copyright protection only if it “constitutes the story being told”. In this case, the character in question, Sam Spade of the Maltese Falcon detective novel, was held to be a “mere vehicle” for carrying the story forward. Accordingly, copyright protection did not prevail. The holding in Warner Bros. case came to be known as the Sam Spade Test, this approach does not allow for copyright protection if the character is a “mere chessman in the game of storytelling.”
On the other hand, if the character is central to the story, then it will be copyrightable. In the case of Universal City Studios v. Kamar Industries this test was applied to hold that E.T. was a distinctive character around whom the story in the movie E.T. the Extra-Terrestrial revolved. Therefore, the copyright in E.T. was held to be enjoyed by Universal Studios, and the defendants were held liable for a violation of the Studios’ copyright by the manufacturing and sale of goods under the title ‘E.T. Home Phones’.