Cartoon characters are everywhere these days. In movies, video games, television, software, toys, blankets, food, beverages and clothing just to mention a few. Many of these are based on a fictional character which was originally created as part of a graphic work like a comic book. From a value perspective, these characters are assets for large media companies and represent billions of dollars in revenue. According to some reports the top-ten fictional characters grossed more than $25 billion in 2003. Media giants like Disney, Viacom and Hallmark are some of the largest companies who have cartoon characters but most video game makers, media companies, and toy makers such as Mattel and Hasbro are also involved.
COPYRIGHT CARTOON IMAGES
Under traditional copyright law, the original work associated with a graphic novel is often a book or magazine which includes pictures and text. Pulling out a character from a picture in the book and giving it “life” isn’t traditionally covered as the original work. In addition, the comic book is often a joint work with an illustrator creating the visual characters and the writer creating the story or plot. In some cases, the writer describes the comic characters. Creating a comic book may generate questions about who is the author of the character.
Once the character has been given “life,” the character may have enormous value not just as a character in a comic book, but may include other media formats and merchandising activities. The comic character may be protected based on copyright and trademark law. In some cases, these rights extend to the character’s likeness or uniqueness; a name, physical appearance, and attitude or character traits outside the comic book or film including toys, games, software, along with other products and services.
COPYRIGHT CARTOON CHARACTERS
Recognition of characters as independent works separate from the plot in which they were embodied originally resulted from a court case in 1930. Today, the courts typically utilize two main tests to determine whether a cartoon character in a work is eligible for copyright protection
Because there is a balance between protecting an idea of a character (sometimes referred to as a prototype or mere chessman) versus protecting the expression of the idea, Courts utilize a test in determining if a fictional character is copyrightable. Generally, the less developed the character, the less the character is copyrightable. The more developed, the greater copyright protection it will enjoy.
Well – Delineated Test
Under the Well-Delineated Test, a fictional cartoon character is protected if it is determined that the character is found to be “sufficiently delineated.” Under this test, three questions must be answered. 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. The character must have consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression. The consistency of the character’s traits and attributes is considered the key factor for whether the character qualifies for copyright protection.
Story Being Told Test
Under the Story Being Told Test, a character can receive copyright protection if it “constitutes the story being told.” Usually, if the character is simply a vehicle for furthering or carrying the story forward, it will receive no copyright protection. This is also referred to sometimes as the Sam Spade Test, after the fictional character Sam Spade in the Maltese Falcon detective novel which held to be a “mere vehicle” for carrying the story, and thus no copyright protection was available for the character. While an author may assign their copyrights in a work, they are not prevented from reusing the same characters in other works unless the characters constitute the story being told. Thus, if a character is simply a vehicle for furthering the story, the author may reuse these characters in other works even if they assign their rights to the original work. Because the characters are simply vehicles for the story being told they do not go with the sale of the story. Under the Story Being Told Test, no copyrightability is allowed if the character is a “mere chessman in the game of storytelling.”
PROTECTION UNDER TRADEMARK
PROTECTION UNDER UNFAIR COMPETITION
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Additional Protections for Cartoon Characters may also be based on the Right of Publicity and Trademark Dilution.
Right to Publicity: The right of Publicity has traces it roots to tort of trespass and includes the tort of right to privacy. Generally, it prevents others from from commercially exploiting one’s name and likeness.
Trademark Dilution: Trademark dilution allows one to prevent another from eroding the value of ones trademark. Under the theory of Trademark Dilution, the trademark owner can prevent others from creating alternative cartoon characters which diminish the value of the character.
If you have questions about protecting a cartoon character or about your rights in a cartoon character, please contact one of our attorneys.