Copyright and Characters: Reconciliation and Prediction
Neither the copyright statute nor the Lanham Act makes specific, express reference to character or characterization as an independent, protectible entity. Among jurisdictions, the independent copyright protection of characters as such has the appearance of inconsistency, in part because the precise question does not come before the courts with any great frequency. A reasonable inference is that characters, like sequels and derivative works, are thoroughly addressed in licensing agreements and other contractual arrangements. But the question can arise even if licenses and contracts are thorough. When questions addressing the distribution of rights to use characters arise, the nature of any property in character necessarily per se comes to the fore. The Ninth Circuit does not yet identify that property, which the circuit does recognize, as copyright. The Second Circuit, on the other hand, does identify character as a creature of copyright.
Whatever the identification, for copyright protection to attach, case law requires that the character go beyond a mere