Can you copyright a fictional character in the United States?

Well developed and recognizable characters are the life blood of a successful story. Characters make a story entertaining and interesting. Authors spend a significant amount of time and effort creating a back story for the characters of a story so that the audience will be interested in the characters. Frequently the success or failure of a book depends on the character s in a book. Successful books turn into a series of books and a successful series of books can turn into a movie or television franchise. It is in the best interest of an author to protect the characters he develops in his story as early as possible so that other people do not reap the benefits of the authors hard work.

In the United States it is possible for fictional characters to be protected under copyright law if certain conditions are met. But there is no single clear cut rule. The United States Copyright Law does not explicitly mention characters as subject matter that is protected, so any copyright protection granted to fictional characters would have to be created by a court’s interpretation of what copyright law may implicitly protect. The United States Court of Appeals for the Ninth Circuit is a U.S. Federal court with appellate jurisdiction over the district courts in California. The United States Court of Appeals for the Second Circuit is a U.S. Federal court with appellate jurisdiction over the district courts in New York. Many large media companies are located in California and New York, and disputes between those media companies that wind up in court that are overseen by those respective circuit courts . Therefore, it is instructive to review the decisions of those circuit courts to learn how fictional characters can be granted protection under the copyright law. So far there has not been a supreme court case which harmonizes the difference between the circuits.

The courts are in agreement that to be eligible for copyright protection a character must be part of a copyrightable work and the character must be fictional. A character must be part of copyrightable work because that is the basis for granting copyright protection. To be granted copyright protection a work must be fixed in a tangible medium. If a work cannot be granted copyright protection, the characters in the work cannot be granted copyright protection. For example the characters in a story told only orally and never written down could not be granted copyright protection because the oral story cannot be granted copyright protection. A character must be fictional because copyright law protects an artist’s expression of an idea, not the idea itself. A biography may be worth of copyright protection, but the author is not granted a copyright on the facts in the biography, only the author’s expression of the facts. An author of a biography cannot prevent other authors from writing their own interpretation of a biography on the same person.

Assuming that a character is fictional and is part of a work which can be protected by copyright, the question then becomes whether the character itself can be protected by copyright. There are two basic tests used by the courts.

A well delineated character – will be granted copyright protection. Under this approach, a three-step test is required to be followed. Firstly, the character must possess physical and conceptual attributes. Secondly, the character must be “sufficiently delineated” to be identified as the same character across multiple occasions. He must therefore show consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression. The consistency of a character’s traits and attributes is considered as the key factor for whether the character qualifies for copyright protection.
A character that is the story – will be granted copyright protection. Under this approach the court reviews how central the character is to the story. To be granted copyright protection the character must actually constitute the story being told and not simply be a vehicle for telling the story.

But frequently the courts will apply both rules when they are determining whether or not a fictional character is worthy of copyright protection.

Authors should be aware of the requirements that a fictional character must satisfy to be granted copyright protection so they can be sure to develop their characters to the necessary degree. If you have questions about standards a fictional character must meet to be granted copyright protection or if you have developed a fictional character which you think copyright is being infringed, you should discuss all the facts with an attorney familiar with copyright law.