Copyrighting Characters and Names: Non-Copyrightable Elements

When creating a story, an author often faces questions about copyright and trademark law, especially when introducing characters with names that evoke famous individuals or existing characters. To address these concerns, this article will explore the copyright issues related to character names and the distinction between copyright and trademark protection.

Can a Character Name Be Copyrighted?

Names, whether real or fictional, do not qualify for copyright protection. According to the United States Copyright Office, Circ. 9, names, titles, and short phrases are generally not registrable under copyright law. However, fictional characters can be protected, but with certain caveats.

Fictional Characters and Copyright Protection

A fictional character can receive copyright protection under certain conditions. The character must be sufficiently developed and original in order to be considered a derivative work. An example often cited is James Bond, created by Ian Fleming. Intellectual property lawyer Kathryn Goldman has noted that for a character to be protectable, it must be “well-delineated,” meaning it is distinct and deeply developed in the work.

Similarity and Copyright Infringement

When a new character bears a striking resemblance to an existing one, it might be considered a derivative work of the original and thus subject to copyright infringement. However, the protection extends only as far as the new character closely replicates the original. The Nichols v. Universal Pictures case from 1930 established the standard for substantial similarity, which courts still use today to determine if a new work infringes on the original.

Copyright Infringement vs. Trademark Infringement

The confusion often arises when characters with names similar to famous individuals are involved. While a name itself is not copyrightable, elements such as a celebrity’s name and likeness are protected by trademark law. For instance, Elvis's name and likeness are owned by Elvis Presley Enterprises, meaning any unauthorized commercial use of these can lead to a lawsuit.

Trademark Infringement Case Studies

Copyright and trademark are two distinct forms of intellectual property, each governed by its own set of laws. For example, the Harry Potter trademarks owned by Warner Bros. Discovery have been rigorously protected. Any infringement, no matter how minor, can result in significant legal consequences.

Similarly, using names that evoke famous individuals or copyrighted characters can lead to legal troubles. For example, writing a story with a character named "Elvis Jedusor" could be problematic if it exploits the fame of the original character. The key is to ensure the new character does not substantially mimic the existing one to avoid infringing on the original work's copyright.

Conclusion

Characters and their names are not inherently copyrightable, but their development and use can lead to issues in copyright infringement. On the other hand, names and likenesses of real persons are protected by trademark law. As an author, it is essential to understand the difference between copyright and trademark protection to avoid legal issues. Always ensure your characters and their names do not excessively mimic existing works or figures to stay on the legal side of the line.

FAQs

Does a name qualify for copyright protection? No, names do not qualify for copyright protection. Only the creative expression in a work, such as the characters and their stories, can be protected by copyright.

What is the standard for copyright infringement of characters? The standard for copyright infringement of characters is substantial similarity. If a new character closely mimics an existing one in multiple distinctive aspects, it may be considered a derivative work and thus infringe on the original.

Is a fictional character always protected by copyright? No, a fictional character must be sufficiently original and developed to be considered protectable. The protection is limited to the character as it appears in the work and not to the idea or concept of the character.