Dating fictional character
"It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct." See, Nichols v. On the other hand, in those cases where the fictional character was found not to be protected, the character was not distinctively delineated in the original work and therefore that fictional character was only a particular "character type" and was not entitled to copyright protection.
Thus any inquiry concerning the protection of fictional characters involves two questions.
The article Protection Of Graphic Characters provides an overview of the protection of characters and general guidelines for protection of a graphic character that is depicted by a cartoon or other graphic representation, such as Mickey Mouse or Superman.
This article will focus on the protection available for a "fictional character" (also referred to as a "literary character"), such as James Bond, Sam Spade, Sherlock Holmes or Hopalong Cassidy, who is first represented by a "word portrait" and then possibly at some later date by a graphic representation.
The protection problem may also exist when a later graphical representation of a fictional character is portrayed very differently than from the word portrait that initially appeared.
COPYRIGHT PROTECTION Copyright law will only protect the characterization of a fictional character if the character is portrayed in a copyrighted work.
Another difficulty is that sometimes a fictional character, even when it is incorporated in a copyrighted work, is deemed by the court to not be entitled to copyright protection.
Furthermore, even when the fictional character is protected it frequently receives less protection than that accorded to graphic characters.
Because of the "value" that may be inherent in a fictional character, the creator and/or publisher should always take steps to ensure that the fictional character is protected, especially if there may be a possibility to use the fictional character in book sequels, or for licensing the use of the fictional character for films, television programming, electronic or other media or merchandising.Copyright protection for fictional characters appears to have had as its genesis, a subsequently much quoted statement by Judge Learned Hand. Generally in those cases where the fictional character was found to be protected, the character that was copied was "distinctively delineated" (or fully developed) in the original work and that the character's delineation was misappropriated in the copier's work.