Several recent cases have highlighted the interesting issue of whether and when fictional characters – as distinct from the works they inhabit – are subject to copyright protection. Over the years, courts have developed two main tests for determining whether characters are worthy of copyright protection. First, as Judge Hand pointed out in the 1930 case Nichols v. Universal, stock characters are free for anyone to use, but characters that are sufficiently delineated are protected from imitation: “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinctly.” 45 F.2d 119, 121 (2d Cir. 1930). On the other hand, some courts have concluded that characters are only copyrightable if they “constitute the story being told,” as opposed to “only a chessman in the game of telling the story.” Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945, 950 (9th Cir. 1954).
There is some uncertainty in more recent case law as to which of the two tests controls, with some courts applying both tests and some concluding that satisfaction of either test is sufficient for a character to enjoy copyright protection. In general, it appears that modern courts have found the “sufficiently delineated” test more helpful in answering the copyrightability question.
Consensus also seems to support a distinction between purely literary characters and those depicted graphically or visually, such as in comic books, television, or film. In the latter case, there is often pictorial as well as textual expression involved, and there is greater opportunity to delineate details of the character’s appearance that may be left to the imagination in a prose depiction.
Faster than a Speeding Bullet
There appears to be little dispute that the character of Superman is entitled to copyright protection. The Second Circuit held as much in 1940. Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940). Yet more than seventy years later, copyright in Superman is still a contentious issue, involving ongoing court battles between DC Comics Inc. (successor to Detective Comics) and the heirs of Superman’s creators. The Ninth Circuit held in January that DC Comics owns full rights to the character, based on its interpretation of an earlier settlement between the parties. Notably, neither party to this protracted dispute took the position that the lucrative Superman character was actually not protectable by copyright.
Elementary, My Dear Watson
A new case filed last month in the Eastern District of Illinois focuses on copyright protection for Sherlock Holmes and his fellow characters, such as Dr. Watson and Professor Moriarty. The plaintiff, Leslie Klinger, is a Sherlock Holmes scholar who seeks to publish a book of stories by contemporary authors placing Holmes, Watson, and other characters created by Arthur Conan Doyle in new mysterious scenarios. The defendant, Conan Doyle Estate, Ltd., claims to own the copyright in these characters and has demanded that Klinger or his publisher pay a license fee. Klinger does not argue that Sherlock Holmes is “indistinctly” drawn and should fail the test for copyrightability. Rather, he argues that the character has fallen into the public domain in the United States, since all but ten of the sixty Conan Doyle stories and novels in which he appears were published before 1923. (All of Conan Doyle’s Holmes works are in the public domain in the United Kingdom and Canada.) An exhibit to Klinger’s complaint contains a detailed list of character traits – such as Holmes’s “bohemian nature,” drug use, aptitude for disguise, and physical appearance – that all allegedly appear in the public domain stories. Thus, Klinger argues, Sherlock Holmes was “sufficiently delineated” before 1923 and has entered the public domain as a character, notwithstanding the fact that Conan Doyle continued to create derivative works based on that character that remain subject to copyright protection.
To the Batmobile!
Also last month, the Central District of California issued a decision holding that Batman’s vehicle, the Batmobile, is a copyrightable character. In that case, DC Comics, which also owns rights to the Batman comic book series, sued Mark Towle, owner of Gotham Garage, who was in the business of building and selling cars designed to look like the Batmobile. Defendant argued that the Batmobile was “just a car,” but the court disagreed, finding that it was “sufficiently delineated” to merit copyright protection: “The Batmobile, in its various incarnations, is a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime. Even though the Batmobile is not identical in every comic book, film, or television show, it is still widely recognizable because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet black.” Moreover, it has a personality: “Other than its physical features, the Batmobile is depicted as being swift, cunning, strong, and elusive. . . . The comic books portray the Batmobile as a superhero.”
The court also found, in the alternative, that the Batmobile is entitled to copyright protection as a “pictorial, graphic, [or] sculptural work” and is not excluded from protection as a useful article. In the comic books, of course, the Batmobile is a two-dimensional picture, not a functioning vehicle. It was created in three-dimensional form to be filmed in television shows and movies, but the court found that even the 3-D incarnations are “entirely distinguishable from an ordinary automobile.” Although it “happens to look like a car,” the “so-called functional elements associated with it . . . incorporate fantasy elements that do not appear on real-world vehicles” and “are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”
Although defendant has a laches argument that survived summary judgment, it appears likely that comic book fans hoping to drive around in their very own Batmobiles may no longer be able to purchase them from Gotham Garage. But they can still set their sights on owning the original Batmobile created for the 1960s television series, which sold at auction in January for $4.6 million. Holy collector’s item, Batman!