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This article is written by Jishnu Neelakandan Bhattathiripad, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws, from LawSikho.

Introduction

Fictional characters are those characters which are a consequence of human imagination, having unique identifiable character traits and attributes which may be depicted in a literary, graphical/animated or as part of a cinematographic, medium. These characters always played an important role in our lives whether it’s the famous character of Harry Potter which was first embodied in a literary fashion later adapted to a hit movie series or the web-slinging character of The Spiderman. Even light hearted cartoon characters, the ones which provided us with visual entertainment while growing up, like Tom & Jerry, Scooby Doo are the ones we probably would fondly recall as part of our sweet memories.

Hence it is a no brainer that the right to commercially exploit such characters by its creator becomes fundamentally important to them, as these characters are the result of their hard labour and creative skill. Moreover in today’s globalized world, with the advent of OTT (Over The Top) platforms, big budget production houses, dedicated in delivering quality content, the lawful protection of one’s creative work, especially copyright in such characters, has assumed great importance. However, a careful analysis of several case laws would reveal that not all fictional characters are copyrightable. The copyrightability of fictional characters diminishes with decrease in quality of its character development. This article analyzes as to why lightly sketched characters are not copyrightable in light of the recent case of Daniels v. the Walt Disney Co.

Fundamentals of Copyright Protection in the United States of America. (henceforth to be referred as USA)

To understand the nature of copyright in characters it’s important to first understand the basics of copyright law in the USA. According to the Copyright Act 1976 (henceforth to be referred as the said Act) of the USA, the requirements for copyright to subsist in any work is two-fold. 

Firstly such work should be an original creation, meaning it should involve an element of creativity and secondly that it should be tangibly expressed through any fixed medium. 

The said Act protects expression of ideas and not ideas itself. Ideas howsoever creative cannot be copyrighted under the said Act unless they are uniquely expressed through a fixed medium. 

This follows that copyright protection is limited to original expression of ideas. However it is not necessary that for a work to be given copyright protection, ideas itself should have originality.

Daniels v. the Walt Disney Co

In this case the United States Court Of Appeals For Ninth Circuit(henceforth to be referred as the Ninth Circuit) through application of different tests laid down in various case laws under common law, brought home the point that lightly sketched characters do not entail copyright protection. 

Facts

  • Denise Daniels, the plaintiff, an expert on children’s emotional intelligence and development, developed five color-coded anthropomorphic characters each representing a different emotion collectively called ‘The Moodsters’.
  • She hired a team to develop and produce this idea and thus formed ‘The Moodsters Company’. 
  • The company’s initial product ‘ The Moodsters Bible’ released in 2005. This Bible became the pitchbook which conveyed Daniel’s idea quite effectively to media executives, potential collaborators and also included a brief description of characters appearing in the Moodsters Universe.
  • In 2007 Daniels released a 30-min long video for a television series featuring the Moodsters titled “The Amoodsment Mixup” (“pilot”) which was later made available on YouTube. 
  • Daniels consistently from the years 2005-2009 pitched the idea of the Moodsters to several entertainment companies, one of them being Walt Disney.
  • Daniels and her team developed during the years 2012-2013 a second generation of toys and books featuring the Moodsters which was sold at Target and other retailers beginning in 2015.
  • Walt Disney began developing its movie ‘Inside Out’ from the year 2010 and released it in 2015 featuring five anthropomorphic emotions that live inside the mind of a 11 year old girl named Riley. 
  • Daniels & her company filed a suit in 2017 against Walt Disney for copyright infringement of both individual Moodster characters and them collectively as an ensemble in the United States District Court for the Central District of California (henceforth to be referred as the District Court).
  • Disney filed a motion to dismiss the suit on grounds that Daniel’s characters the Moodsters failed to meet the set legal standards for copyright protection in characters.
  • The District Court granted Disney’s motion to dismiss the suit and came to a finding that Daniels’s Moodsters are not protectable by copyright.
  • Daniels appealed this decision by the District Court in the Ninth Circuit.

Before moving on with analysis of the case it is important for one to take a step back to firstly understand that how do fictional characters draw copyright protection when they themselves are not specifically protected under any statute relating to the copyright law? The answer to this question is addressed through judicial pronouncements, delivered time and again by Courts in the USA, who became instrumental in carving out several ‘tests’ that provide certain essential qualities for fictional characters, before being granted copyright protection.

Thus before moving on with how the Ninth Circuit arrived at the dictum that lightly sketched characters have no copyright protection it is important for one to go through these tests for conceptual clarity. 

Established Standards for Copyrightability of Fictional Characters

Nichols v. Universal Pictures Corp (The Delineation Test)

This case marks the genesis of Courts recognizing that fictional characters are capable of being given copyright protection. 

In this case Judge Hand of the United States Court of Appeals for the Second Circuit denied the Plaintiff’s alleged infringement claim, for use of similar characters by the defendant from plaintiff’s play “Abie’s Irish Rose” and held that copyright does not subsist in stock characters which have no distinctive quality.

The Plaintiff’s characters, a Jewish gentleman and his love interest, that of a poor Irish catholic girl, were regarded by Judge Hand to be too generalized in nature having no distinct identity of their own. 

The result of this judgement being the creation of the delineation test where to satisfy the same it was necessary that characters should possess certain attributes or traits which are so sufficiently developed so as to be distinctly delineated.

Warner Bros. Pictures, Inc. v. Columbia Broadcasting Sys., Inc (The Story Being Told Test)

In contrast with the delineation test the Ninth Circuit in this case brought about a new ‘story being told test’ . This test was more rigorous and demanded an increased standard before granting copyright to a fictional character. 

For a character to satisfy the story being told test, it is necessary that such character dominates the narrative of the story and not merely be a stereotypical person, who if removed from the story, can go unnoticed without affecting the plot of the story.

DC Comics v. Towle (Towle Test)

The Ninth Circuit in this case introduced a three part test the satisfaction of which would render copyright protection to fictional characters appearing in comic book, television program or motion picture.

The three part test is as follows:

  1. The character must have general physical as well as conceptual qualities.
  2. The character must be so sufficiently delineated that it becomes identifiable whenever it appears.
  3. The character must be so distinctive so as to contain unique elements of expression and not merely be stock characters.

Analysis

Denise Daniels’s characters, collectively called the ‘Moodsters’, represented five color-coded anthropomorphic characters each representing a different emotion. The first representation of her idea was found in the literary product ‘The Moodsters Bible’ released by her own company. 

The Moodsters Bible gave a brief description on the color coded anthropomorphic characters appearing in the Moodsters Universe. The same was also televised with the help of a ‘Pilot’ episode with a duration of 30 minutes titled “The Amoodsment Mixup”. Daniels was also interested in adaptation of her work and hence was consistently approaching well established entertainment industries. So when Walt Disney came up with the movie ‘Inside Out’ featuring five anthropomorphic emotions that live inside the mind of a 11 year old girl named Riley, the contention arose as to whether Daniel’s has copyright with respect to the characters so used by Disney? 

To answer this question the Ninth Circuit applied two tests:

  1. Towle Test.
  2. Story Being Told Test.

Towle Test

The Towle Test meant that Daniel’s Moodsters had to satisfy the three mandatory requirements as explained before. The first requirement was held by the Ninth Circuit to be met with as the Moodster characters were found to have physical and conceptual qualities. However with regard to the other two requirements the Ninth Circuit found that the Moodsters faced difficulties in satisfying the same. 

With regard to the second requirement the Ninth Circuit by comparing the Moodsters to other characters like the Batmobile, James Bond, Godzilla, who already met the requirements of the test, held that the Moodsters lack consistency in their appearance. The physical appearance of the Moodsters was seen to be significantly changed, at first appearing with insect like bodies with large ears, tall antennas but later as small bears with detective hats. Also apart from the only commonality of each character of the Moodsters, representing a different emotion, the Ninth Circuit found no consistent character attributes which made the Moodsters identifiable.

In contrast the Batmobile though has appeared in various movies, was always capable of being identified as a Bat-shaped crime fighting car which enabled Batman to fend off his enemies. Moreover the Ninth Circuit also addressed the idea-expression dichotomy. Even though each character of the Moodsters were color coded to represent a particular emotion, the Ninth Circuit held that, this itself is not akin to creative expression. The reasoning being that colors representing emotions is a common practice and hence is in the realm of ideas which as explained before cannot be copyrighted. Only original expression of an idea is copyrightable. Hence the Moodsters failed the second requirement too.

With regard to the third and final requirement of the Towle Test the Ninth Circuit held that the Moodsters are not especially distinctive and do not contain unique elements of expression. Again to reach this conclusion, the Ninth Circuit compared the Moodsters with the Batmobile and held that while the Batmobile has a distinctive highly consistent recognizable name, the Moodsters lacks the same throughout the various iterations in which it has appeared. The Ninth Circuit also held that merely because each character of Moodsters represented a single distinctive emotion, that alone does not satisfy the third requirement as the Moodsters are otherwise too generic in nature having no detailed character traits. Thus, since the Moodsters failed the second and third requirements of the Towle Test the Ninth Circuit turned to the Plaintiff’s claim that the same satisfies the story being told test.

Story Being Told Test

With regard to the story being told test (explained before), the Ninth Circuit did not find any evidence which proves the Moodsters were subject to any significant character development. Even the ‘ The Moodsters Bible’ released by Daniels’s company in 2005 contained pithy description of the Moodsters characters which was not sufficiently developed thereafter. For these very reasons the Ninth Circuit held that the Moodsters failed the story being told test.

The Ninth Circuit also rejected the final alternative argument provided by Daniels which referred to the Moodsters as an ensemble passing one or both the above tests. The reasoning for such rejection was that when the individual characters of Moodsters themselves do not qualify the test of distinctiveness or delineation the same cannot be cured by merely being considered as an ensemble.

Conclusion

Thus the Ninth Circuit through its judgement in Daniels v. the Walt Disney Co made a strong precedent that lightly sketched characters do not receive copyright protection. It reaffirmed the fact that copyrightability of a fictional character is directly related with how developed the character is. The more developed the character the more possibility of it being given copyright protection. It also reaffirmed that while ideas themselves are not copyrightable original and creative expressions of such ideas shall be. While copyright protection in fictional characters develops on a case to case basis this judgement informs as to why and on what basis certain characters cannot be granted copyright protection.


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