Intellectual Properties and the Protection of Fictional Characters: Copyright, Trademark, or Unfair Competition?

By Dorothy J. Howell | Go to book overview

(5) with special but not exclusive reference to graphics and films, to display the work publicly." 21 In the event any of these rights is infringed, the proprietor is entitled to appropriate injunctions and the impoundment and disposition of the infringing articles. 22 Note that there is no reference to characters in the statutory provision.

The courts have expanded statutory coverage to include the plot of a novel, at least so far as it is original with the author. Although fictional characters have been the frequent subject of litigation, the extent of their protection, according to observers, remains in a state of confusion. 23 It is the purpose of this work to eliminate the confusion. To do so, however, requires a thorough background in the intellectual properties that can attach to characters. Chapter 2 is the starting point, beginning with copyright itself.


NOTES
1.
For discussions of basic principles of law, see, eg., M. RADIN, ANGLO-AMERICAN HISTORY ( 1936), H. GRILLIOT, INTRODUCTION To LAW AND THE LEGAL SYSTEM ( 3d ed. 1983), G. CLARKE, SUMMARY OF AMERICAN LAW ( 1949); for basics of intellectual property, see, eg., M. EpSTEIN , MODERN INTELLECTUAL PROPERTY ( 1984).
2.
International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211 ( 1918).
3.
39 S. Ct. at 71.
4.
39 S. Ct. at 72-73.
5.
39 S. Ct. at 73.
6.
39 S. Ct. at 76.
7.
39 S. Ct. at 78.
8.
39 S. Ct. at 79, 82.
9.
All definitions in this section are from BLACK'S LAW DICTIONARY, ( rev. 4th ed. 1968), unless otherwise noted.
10.
15 U.S.C. 1051, at §1127.
11.
This brief history is taken from Wilson, "Visual Arts & the Law", in LAW AND THE ARTS/ART AND THE LAW ( T. HORWITZ, ed. 1979). See also W. STRONG, THE COPYRIGHT BOOK/A PRACTICAL GUIDE ( 2d ed. 1984).
12.
17 U.S.C. 101et seq., as amended in 1976 by Pub. L. 94-553.
13.
"18 Am. JUR. 2d", Copyright §80 ( 1965).
14.
"74 Am. JUR. 2d", Trademarks and Tradenames §84 ( 1974).

-13-

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