By Joe Sofer May 2018
Are fictional characters copyrightable? If you create a new character in your book or graphic novel, can you use copyright protection for characters as a means to protect your work? With the explosive growth of social media and advancement in computer generated graphics, many characters that were formally described in books and comics have been developed in movies, video games, and merchandising with similarly explosive economic value.
Protecting Fictional Characters Under U.S. Copyright Law
Courts have routinely reviewed issues of copyright protection for characters and have awarded damages to cases where characters have been copied in mediums different than the original text or representation. A famous case involved the Honda del Sol commercial which depicted a James Bond type character driving a Honda in a helicopter chase involving a villain.
In a detailed decision by the court in MGM v. Honda 900 F. Supp. 1287 (CD Cal. 1995) the court held that the protagonist in the commercial was an infringing depiction of the James Bond Character. The MGM plaintiffs owned registered copyrights to the several James Bond films. The defendants aired a commercial for a Honda car. The plaintiff alleged that the commercial infringed on its copyright in the James Bond films by intentionally copying specific scenes. More interestingly, plaintiff also alleged infringement of its copyright in the James Bond character itself as delineated in those films. The entire commercial can be viewed on the YOUTUBE website by searching for “James Bond and Honda.”
The court held that the James Bond character was indeed protected by copyright. Like Rocky, Sherlock Holmes, Tarzan and Superman, James Bond has certain character traits that have been developed over time through the 16 films (1995 decision date) he appeared in. It is the James Bond character as developed in the films that is the copyrighted work at issue and not the James Bond character generally. Each of the 16 films contains distinctive scenes that together comprise the classic James Bond adventure; a high thrill chase of the ultra cool British charmer and his beautiful and alarming sidekick by a grotesque villain in which the hero escapes through wit aided by high tech gadgetry. The 9th Circuit Court also referred to another decision in Anderson v. Stallone where that court held that the Rocky characters as developed in the 3 Rocky movies constitute expression protected by copyright independent from the story in which they are contained.
Furthermore, the fact that many actors can play the James Bond role, is a testament that James Bond is a unique character whose specific qualities remain constant despite the change in actors. A James Bond film without James Bond is not a James Bond film. A plaintiff who holds copyrights in a film series acquires copyright protection as well for the expression of any significant characters portrayed therein.
The court found several specific aspects of the Honda commercial that appear to have been lifted from the James Bond films:
In “The Spy Who Loved Me,” James Bond is in a white sports car, a beautiful woman passenger at his side, driving away down a deserted road from some almost deadly adventure, when he is suddenly attacked by a chasing helicopter whose bullets he narrowly avoids by skillfully weaving the car down the road at high speed. At the beginning of the Honda commercial, the Honda man turns to his companion and says, “That wasn’t so bad” to which the woman replies, “Well I wouldn’t congratulate yourself quite yet: implying that they had just escaped some prior danger. Suddenly a helicopter appears from out of nowhere and the adventure begins.
In “Dr. No.,” the villain has metal hands. In the Honda commercial the villain uses his metal encased hands to cling onto the roof of the car after he jumps onto it.
In “Goldfinger,” Bond’s sports car has a roof which Bond causes to detach with the flick of a lever. In the commercial, the Honda del Sol has a detachable roof which the man uses to eject the villain.
In “Moonraker,” the villainous henchman, sporting a broad grin revealing metallic teeth and wearing a pair of oversized goggles, jumps out of an airplane. In the commercial, the villain, wearing similar goggles and revealing metallic teeth jumps out of a helicopter.
In “The Spy Who Loved Me,” the villain assaults a vehicle in which Bond and his female sidekick are trying to escape. In the commercial, the villain jumps onto the roof of the Honda car and scrapes at the roof attempting to hold on and possibly get inside the vehicle.
In “You Only Live Twice,” a chasing helicopter drops a magnetic line down to snag a speeding car. In the Honda commercial, the villain is dropped down to the moving car and is suspended from the helicopter by a cable.
In sum, the extrinsic ideas that are inherent parts of the James Bond film appear to be substantially similar to those in the Honda commercial. Copyright protection for characters is an important consideration when developing new creative work.
Examples of Copyright Protection for Fictional Characters
MGM referred to two Ninth Circuit opinions that have allowed copyright protection for characters who are especially distinctive. For example, in Walt Disney v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) the Court held that the pictorial illustration was a copyrightable component of the entire work covered by a valid copyright. The various drawings of each character had a consistency that gave each character a recognizable image. Many literary characters may embody little more than an unprotected idea while a comic book character which has physical as well as conceptual qualities is more likely to contain some unique elements of expression. For similar reasons, copyright protection may be afforded to characters visually depicted in a television series or in a movie. Olson v. National Broadcasting Co., 855 F.2d 1446 (9th Cir. 1988).
The court in MGM found various character traits that are specific to Bond, i.e. his cold bloodedness, his overt sexuality, his love of martinis shaken not stirred, his marksmanship, his license to kill and use of guns, his physical strength, his sophistication. The court found that such a case which involves a careful visual delineation of a fictional character as developed over 16 films and 3 decades requires greater protection of the fictional work than that accorded more factually based or scientific works.
Recently, Horizon Comics v. Marvel Entertainment 246 F.Supp.3d 937 (S.D.N.Y. 2017), comic book artists Ben and Ray Lai, the brothers who own Horizon asserted copyright infringement for their comic book series called Radix. The characters in that series wear highly detailed, futuristic, armored, and weaponized suits of body armor to fight enemies. The complaint alleged that Marvel’s Iron Man character infringes the Radix Character. Marvel asked the Court to decide as a matter of law that the two characters are not substantially similar. The two characters side by side comparison as below showed some similarities:
The Court noted that it applies the “more discerning” substantial similarity analysis because the works contained both protectable and unprotectable elements. The unprotectable elements included the “idea of a highly mechanized suit of armor,” and the “fighting pose.” The Court however concluded that the similarity in hairstyles, the use of blue lights in the suits in the chest plate, the notches in the shoulder, the lighting and shading in the images, use of blue and red shades and the coloration of images evinced some similarity in expressing a “total concept or feel,” the justified a consideration by jury.
Interestingly, the character protection in copyright law applies to non-animate objects as well. For example, in DC Comics, v. Mark Towle, 802 F.3d 1012 (9th Cir. 2015), the Court granted copyright protection to Batman’s Batmobile. The Court held that the Batmobile, as it appeared in the Batman comic books, television series, and motion picture, was entitled to copyright protection, because the automotive character was sufficiently distinctive element of the works. The Court considered the history of the Caped Crusader who since 1939 has protected Gotham City from villains with the help of his sidekick Robin the Boy Wonder, his utility belt, and of course the Batmobile. The Batmobile, introduced in 1941, is a fictional, high tech car that Batman drives. The Batmobile has varied in appearance over the years, but its name and key characteristics as Batman’s personal crime-fighting vehicle have remained consistent. Over the past eight decades, the comic books have continually depicted the Batmobile as possessing bat-like external features, ready to leap into action, equipped with futuristic weaponry and technology that is “years ahead of anything else on wheels.”
The Court stated that the main consideration is whether the character has “distinctive …traits and attributes, even if the character does not maintain the same physical appearances in every context.” I This analysis is similar to the analysis made by the James Bond court. The Court stated that Batmobile has consistent character traits, such as “crime-fighting…with sleek and powerful characteristics that allow Batman to maneuver quickly while he fight villains.” It possess “jet engines, and flame-shooting tubes.” In most iterations the Batmobile contains a “hot-line phone…directly to Commissioner Gordon’s Office, “ and a “special alarm” that foils the Joker’s attempt to steal the Batmobile. Based on these consistent and distinctive character traits, the Court held that the Batmobile character is copyrightable. The Court then compared the two cars as follows:
Based on a side by side comparison, the Court held that the Batmobile character was infringed by the defendant.
Character Copyrightability Factors
The following is a compilation of factors to consider when determining whether a character is protectable:
- Visual elements: The use of a graphic version of the character aids in creating a character that the courts will find protectable.
Repetitious use: On going use of a character in a variety of media will establish the character in both the public and the court’s eyes.
- Consistent use: A fictional character is nothing but a set of consistent attributes. Once a character is established it is crucial that the character’s key elements be identified and used consistently.
- Use of a variety of settings: It is very helpful to use the character in different settings and plots. Such use will generally add to the sense that the character is the central element of the story being told. Furthermore, such use of the character will likely result in a clearer sense of what elements are integral attributes of the character that cannot be copied without infringing.
- The Sliding Scale: On one side of the scale the more similar the character is visually, the more likely it will be held infringing even if its literary traits are very different from the original. The more similarities in one the less similarities you need in the other. Stirring one’s memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only the latter is infringement.
Importance of Character Protection for Authors
Character copyright protection provides the owner exclusive rights to use, copy and adapt the fictional characters. It behooves authors and creators to obtain copyright protection for their characters. Obtaining a copyright for a book or comic character can results in financial benefits, as well as peace of mind.
In sum, graphic artists, comic book creators, toy manufacturers and authors who engage in developing distinct characters should consider registering their work so as to protect the underlying characters. This can be easily accomplished by visiting www.copycatchlaw.com