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

By Dorothy J. Howell | Go to book overview

5
Character as a Copyright
or Trademark Property

ELEMENTS OF COPYRIGHT AND TRADEMARK

In proceeding from the principles behind protection of intellectual properties by copyright and trademark into application to fictional characters, it is essential to recall the basics of the two types of property. The elements of copyright start with copyrightability of and copyright in the work. It must be shown that, despite associated traditions behind this work, its expression is unique and that the allegedly infringing work has taken that expression. Thus, the source of the allegedly infringing work must be the earlier work and not the underlying tradition or some independent source. Since actual direct copying is rare, infringement must be inferred from access to the earlier work and substantial similarity in the expression of the two works. Ideas are judicially compared through the objective extrinsic test while expression is compared through the more subjective intrinsic test.

Characters are subject to no different approach; therefore, substantial similarity between characters may occur without infringement if they are a part of scènes à faire. Substantial

-83-

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