US Supreme Court asked to clarify the standard for fictional character copyright. DANIELS v. WALT DISNEY

Well developed and recognizable characters are the life blood of a successful story. Characters make a story entertaining and interesting. Authors dedicate a significant amount of time developing a backstory for the characters of a story so that the audience will be interested in the characters. Frequently, the success of a book depends on the characters. 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 developed in a story as early as possible.

In the United States it is possible for fictional characters to be protected under copyright law if certain conditions are met. United States Copyright Law does not explicitly say that fictional characters are subject matter that is protected, but court precedent has extended copyright protection to fictional characters in certain circumstances. United States Supreme Court has not articulated a single rule for courts to follow. Instead, each circuit court has come up with slightly different rules.

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. A character must be fictional because copyright law protects an artist’s expression of an idea, not the idea itself. An author of a biography cannot prevent other authors from writing their own interpretation of a biography on the same person.

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 .

The Court of Appeals for the Second Circuit, which oversees New York, uses the“sufficient delineation” standard, which vaguely holds that the more detailed a character, the more likely copyright law will protect the character.

Court of Appeals for the Ninth Circuit, which oversees California, has a three-part test: a character must (1) have physical as well as conceptual qualities, (2) be sufficiently delineated to be recognizable as the same character whenever it appears, and (3) be especially distinctive and contain some unique elements of expression.

Other Circuit Courts have adopted similar, but different tests. The difference in case law between circuits can leave authors unsure of whether their works qualify for copyright protection.

DANIELS v. WALT DISNEY CO., 18-55635 (9th Cir. 2020) is an example of a case where fictional characters were found to not qualify for copyright protection as a matter of law.

Plaintiff and her company Moodsters Co. created a story about fictional characters. The fictional characters are the embodiment of emotions that every human experiences. The five characters were referred to as The Moodsters. Each character has a unique color, physical appearance, personality and reside in the mind of a child. Plaintiff raised $3 million in investment to develop a pilot episode and market the Moodsters to potential collaborators.

Plaintiff pitched the idea of The Moodsters to Defendants from 2005 to 2009. In 2010 Defendants began producing their own movie titled Inside Out which features five color coded characters that represent emotions, that reside in the mind of a child. Inside Out was released in 2015 and Plainitiff filed suit for copyright infringement shortly after that.

The District Court and the Ninth Circuit dismissed the complaint because “lightly sketched” characters such as The Moodsters, which lack “consistent, identifiable character traits and attributes,” do not enjoy copyright protection. The complaint was dismissed as a matter of law, before Plaintiff had a chance to present evidence about the selection and arrangement of features of its characters, the originality of the characters or the substantial similarity between The Moodsters and the characters in Inside Out.

Plaintiff has requested that the United States Supreme Court review the case. Plaintiff has requested that the Supreme Court 1) review the standard for copyright protection of fictional characters and 2) decide whether fictional characters present an issue of fact which cannot be dismissed before evidence has been submitted.

If the Supreme Court chooses to hear this case it could help clear up the confusion that surrounds the copyright protection for fictional characters.

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