Introduction
Characters such as Mickey Mouse, Mr. Bean, James Bond, Harry Potter, and others have become a part of our everyday life. These characters have sufficiently entered our lives, from watching them on television every day to bringing merchandised products of our favorite characters into our homes. These characters develop from episode to episode and series to series, and this development is brought about by the writers of such characters. Unfortunately, copyright laws all around the world do not recognize characters as the subject matter of copyright, but judicial decisions all over the globe have established a few tests to reward copyright protection to characters.
- Character Delineation Test
The character delineation test was established in the case of Nichols v. Universal Pictures Corp[1], the court held that the characters can only be protected under the scheme of copyright if they are sufficiently delineated. The test prescribes that the character has to be developed sufficiently and the more developed the character, the more it embodies expression, and less a general idea. And hence, the more likely it is to be copyrightable.
- The ‘Story Being Told’ Test
The story being told test was established in the case of in Warner Brothers Pictures Inc. v. Columbia Broadcasting System., the court held that ‘No character is protectable under the copyright law unless such character is extremely well-delineated as to form the ‘story being told’ rather than being a mere chess man in the game of telling the story’.[2] Simply said, this test requires that the character be an integral component of the story. The character must be so ingrained in the plot that eliminating the character renders the story irrelevant.
- Towle Test
The Towle test has been developed in the case of D.C. Comics v. Towle, under this test, a character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities,” (2) the character is “sufficiently delineated to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes,” and (3) the character is “especially distinctive” and “contain[s] some unique elements of expression.”[3] This test has been successfully applied in the recent case of Daniels v. Walt Disney Co.[4]
Conclusion
Other than these requirements, there is no other means for a character to receive copyright protection, and meeting each of the aforementioned conditions appears difficult to achieve. The characters are the outcome of artistic works, and as such, they must be listed separately as the subject of the copyright.
BY
Ekta Dixit
LLM (IPR & Tech Laws)
JINDAL GLOBAL Law School
[1] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)
[2] Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.3d 945 (9th Cir. 1954)
[3] DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015)
[4] Daniels v. Walt Disney Co. – 958 F.3d 767 (9th Cir. 2020)