Pictorial and Literary Characters

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 34

Owners of copyright in literary or pictorial stories have on occasion attempted to assert an exclusive right to the characters depicted therein.

The right to continue certain characters in television series, or in novelistic and motion picture sequels, is of great economic value, as is the right to "merchandise" these characters on shirts, bed linens, dolls and other such paraphernalia.

Pictorial characters drawn for comic books or film cartoons are readily protected by copyright, as pictorial and graphic works, provided they meet the minimal requirements for "original authorship."68.

Far less likely to be protected by copyright are characters who are delineated by words in literary works. Most such literary characters are "types" with a limited number of not uncommon personality attributes; their "character" is more a reflection of a story line or plot than of any intrinsic detailed nature. Literary characters as such are thus commonly regarded as falling on the "idea" side of the dichotomy between unprotectible idea and protectible expression. Frequently cited are the memorable lines penned by Learned Hand in 1930:

If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Eins:ein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.69.

An even more exacting standard for copyright protection of literary characters was articulated many years ago by the Court of Appeals for the Ninth Circuit, which stated that the character must "really constitute the story being told" rather than being "only the chessman in the game of telling the story," but this test has since been repudiated by that court.70.

No court has held that a literary character that was the subject of litigation meets the standard of copyrightability, although the Court of Appeals for the Second Circuit has intimated, without elaboration, that the Hopalong...