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Copyright and Characters: When Fictional People Take on Lives of Their Own

Most people know that there is some type of legal protection for creative works like books, music, or movies, but the contours and limits of that copyright protection are a little murkier. For instance, one often litigated area of copyright law is how it applies to characters from creative works. For instance, when J.K. Rowling wrote the Harry Potter series, she clearly gained copyright protection for the stories. No one is allowed to reproduce them without her permission. But, what about the characters? Could someone right a completely new story using Harry and the others? The answer: probably not.

When Copyright Can Protect Characters

Copyright law protects some characters under a doctrine known as “derivative works.” If a person holds a copyright in a book or a movie, then not only do they have the rights to stop anyone else from reproducing copies of the work, they also have the ability to stop people from making works that derive from it, such as a sequel. Using someone else’s characters in a work is often enough to trigger copyright issues.

However, it is important for people to note that not every character in every story triggers copyright protection. The dominant issue is how distinct the characters are. This test goes all the way back to a court case from the 1930s that held that characters are protectable, provided that the authors did not “mark[] them too indistinctly.” For instance, a copyright in Harry Potter would not give someone the ability to prevent the publication of every story about an orphan chosen by a prophecy to stop an evil wizard, but if the orphan is named Harold Trotter, has a lightning bolt scar, and owns a pet owl, then copyright protection becomes more plausible.

Some courts apply another test in addition to or instead of the distinctness test, though it is less common. These courts will also look to whether the character is actually the story themselves, rather than simply being a “chessman in the game of telling the story.”

The Sherlock Holmes Case

An interesting example of this issue was recently litigated in Illinois, where a lawsuit was taking place over a Sherlock Holmes anthology. The estate of Sir Arthur Conan Doyle, the author of the original Sherlock Holmes stories, was suing the publisher of an anthology of new Sherlock Holmes stories, original stories by different authors using the same character. What made this case unique was the fact that Sherlock Holmes is only partially in the public domain. The way U.S. copyright law works the current border between copyright protection and the public domain is 1923. Anything published before that is free to use. Doyle’s Holmes stories were published on both sides of that year, meaning some are in the public domain and others are still protected by copyright. The estate argued that the copyright on the character lasted until the final story fell into the public domain, while the publisher argued that the elements of the character that were present in the public domain works fell into the public domain with their stories. Ultimately, the court sided with the publisher holding that the current character copyright on Sherlock Holmes only protected parts of the character that were introduced after 1923.

Copyright law has a variety of unique applications, such as the protection of characters. If you are involved in a dispute over a creative work and want to learn more about your rights, contact a Florida copyright lawyer today. The skilled attorneys at Pike & Lustig, LLP are prepared to listen to you case and craft a solution.

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