Can You Copyright a Character or Book Title? How about Trademarking?

Can an author copyright a character like Harry Potter?

by Joseph Perry, Intellectual Property Attorney

Copyright law is complicated.

Can You Copyright a Title?

No. Under the US Copyright Act, you cannot copyright a title.

That is because titles are too short to be protected. Copyright law protects original works fixed in a tangible medium of expression. (For example, your novel written and saved on Microsoft Word is automatically copyrighted). However, when it comes to titles, they’re too de minimis to be copyrightable. That is why you may see the same title for multiple books or films.

Can You Copyright a Character?

The short answer is yes,

But like most things in the law, what you need to make your characters copyrightable is more complicated than it may first appear. That’s because there have been several tests that have developed over the last near-century. They have admittedly led to confusion. Below is a brief summary of tests from the Second Circuit and Ninth Circuit.

The Character Delineated Test – Second Circuit

The “Character Delineated” Test says essentially your characters have to be unique. They can’t be stock characters.

Abie’s Irish Rose: When you CAN’T Copyright a Character

This test developed in 1930 in a case called Nichols v. Universal Pictures. The case concerned a 1922 play by Anne Nichols called “Abie’s Irish Rose.” It’s about a young Jewish man who marries an Irish Catholic girl against their families’ wishes.

Four years later, Universal Pictures produced “The Cohens and Kellys.” It’s about an Irish man who marries a Jewish woman, with both families disapproving. Nichols sued Universal Pictures for copyright infringement, arguing the film had similar plot points.

When talking about the characters in the play and film, the court stated that the less developed a character is, the less likely it can be copyrighted.

This test came to be known as the “character delineated” test.

To give you a sense of what the court meant, here is what the court said regarding characters: “Nor does she [Nichols] fare better as to her characters. It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman.

The defendant has not taken from her more than their prototypes have contained for many decades. If so, obviously so to generalize her copyright, would allow her to cover what was not original with her. But we need not hold this as matter of fact, much as we might be justified. Even though we take it that she devised her figures out of her brain de novo, still the defendant was within its rights.”

Essentially, allowing Nichols to copyright her characters would not allow others to use similar stock characters, which is not something the law encourages. Copyright law’s intent is to progress the arts and sciences, so allowing other authors to take stock elements of characters that have been around for centuries should be allowed.

Anderson v Stallone: When you CAN Copyright a Character

This test was later applied in Anderson v. Stallone. Anderson wrote a treatment of Rocky IV. He met with executives at MGM and Sylvester Stallone, but nothing came to pass. Later Rocky IV was released, and Anderson claimed Stallone and MGM used his script, so he sued for copyright infringement.

As to the character portion of the lawsuit, the court stated:

“The Rocky characters are one of the most highly delineated group of characters in modern American cinema. The physical and emotional characteristics of Rocky Balboa and the other characters were set forth in tremendous detail in the three Rocky movies before

Anderson appropriated the characters for his treatment. The interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie are central to all three movies. Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics.

“This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author. Plaintiff has not and cannot put before this Court any evidence to rebut the defendants’ showing that Rocky characters are so highly delineated that they warrant copyright protection… If any group of movie characters is protected by copyright, surely the Rocky characters are protected from bodily appropriation into a sequel which merely builds on the relationships and characteristics which these characters developed in the first three Rocky movies. No reasonable jury could find otherwise…”

The Story Being Told Test – Ninth Circuit

A few decades after Nichols, the Ninth Circuit heard the case Warner Bros v. CBS, which held that the literary character Sam Spade was not copyrightable.

It stated that a character could not be granted copyright protection unless it “constituted the story being told.” In contrast, if a character is merely a “chessman in the game of telling the story,” the court said it wouldn’t be protected. The court believed Sam Spade was a “mere vehicle” that moved the story forward, so the character could not be copyrighted.

In the Anderson case, Stallone also won under this test. The court stated:

“…the Rocky characters were so highly developed and central to the three movies made before Anderson’s treatment that they ‘constituted the story being told.’ All three Rocky movies focused on the development and relationships of the various characters. The movies did not revolve around intricate plots or story lines. Instead, the focus of these movies was the development of the Rocky characters. The same evidence which supports the finding of delineation above is so extensive that it also warrants a finding that the Rocky characters – Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie – ‘constituted the story being told’ in the first three Rocky movies.”

Stallone also won because Rocky was a visual character, which the court believed made him more identifiable, compared to a literary character that is wholly in the reader’s mind.

It’s Easier to Copyright a Character if it’s Visual: Sam Spade vs. Rocky Balboa

Before Stallone, the Ninth Circuit also heard a case Walt Disney v. Air Pirates. This case involved the admitted copying of Disney’s characters in adult “counter-culture” comic books. The court said that the Disney characters were copyrighted because they were visually depicted.

They distinguished Air Pirates from Sam Spade because Sam was a literary character, and the Disney characters were visual. Cartoon characters have physical and conceptual qualities. Following the Air Pirates case, the visual nature is partly why Stallone won in his case as well.

Given the Sam Spade and Air Pirates cases, it may seem that it’s easier to copyright visual characters than literary characters. If you’re writing a graphic novel, comic book, or illustrated book, you may have an easier time copyrighting your characters because they’re more identifiable to courts, due to their visual nature.

If you’re trying to copyright a literary character, it would be prudent to make sure they’re “well delineated” and “tell the story being told.” Make sure the character is the main part of the action and not a “mere vehicle” for the story’s progression. Courts may look at both tests, so I would make sure your character passes both tests.

Trademark Law

Can You Trademark Book Titles?

Single titles are generally not eligible for trademarks. That’s because consumers may have trouble identifying you as the author of the title. Especially if there are many books that share your title. Think of it this way. If a bookstore carried your book and every other book with the same title at Barnes and Noble, could a consumer ID you as the author? Probably not. Trademark law ultimately helps consumers distinguish goods and services, but if there are 20 books with the same title, it may be difficult to say a particular author wrote a particular book.

Nevertheless, if your book becomes successful, you’re able to claim “secondary meaning.” That means that your title has earned a certain level of fame. Then you may be able to trademark your single title. In that same example, if your book has become a bestseller selling millions of copies, when consumers hear your title, they may automatically think of you. In that case, you may be able to trademark a single title.

What about your titles as part of a book series? You will have a much easier time trademarking because consumers may be able to associate you as the identifier of the book.

Can You Trademark Characters?

You can trademark a character when the character functions as a trademark to indicate the source of its product. If all the character does is represent the character in the minds of the consuming public, your character will likely not be eligible to be trademarked.

However, the availability of trademark protection may depend on the distinctiveness of your character and the depth of its character development. This is where you may run into issues, just like in the book titles example above. If your character isn’t distinctive, it likely won’t be trademarked. This is why it’s easier for characters like Harry Potter to be trademarked. That’s because the consuming public thinks of one author (JK Rowling) and one book series (Harry Potter).

Disclaimer: This article solely covers US law and is for informational purposes only. It is not legal advice nor is it intended to be legal advice.  If you have a legal question, contact an attorney near you.

by Joseph Perry (@PerryLaw1) August 14, 2022

***

What about you, scriveners? Have you wondered if you could copyright a character to keep people from using your invention in their own work? Have you tried to trademark a title or a character? Did you wonder why another writer can use the title of a book you’ve published? Do you have questions for Mr. Perry?

 

About Joseph Perry

Joseph Perry is a publishing attorney and literary agent. You can find him at the Law Offices of Joseph J. Perry, P.C. And Perry Literary, Inc.

As an attorney, he counsels clients in the publishing industry. He drafts and negotiates various publishing agreements and conducts pre-publication reviews of manuscripts. He also registers copyrights and helps authors start their own publishing companies.

As an agent, he represents a variety of successful authors. These include a range of clients from bestselling cookbook authors to acadamics. Joseph obtained his Juris Doctor from St. John’s University School of Law. He earned his B.A. and M.A. from St. Bonaventure University. He’s a graduate of NYU’s Summer Publishing Institute, and is licensed to practice law in New York.

His office also sends out a regular newsletter called Write it Right. It’s full of legal news relevant to authors. I highly recommend it. And you can subscribe here: Write it Right.

***

Featured image. “Statue of Harry Potter in Leicester Square” Wikicommons