Fictional characters are the backbone of the multi-billion dollar entertainment industry. Since the early twentieth century, the owners of fictional characters have recognized that there is money to be made in derivative products featuring those characters and move swiftly to stop infringing use of those characters. Learned Hand, in passing, allowed that fictional characters could be protected through copyright law if the characters were distinctly delineated. Since then, the courts have created a piecemeal protective-strategy involving trademark and copyright law to protect fictional characters. The Seventh Circuit in Gaiman v. McFarlane, continued using the traditional analysis, that copyrightability for a fictional character requires it to have a name and a characterization or personality portrait. However, a name cannot be copyrighted and "characterization" requires a court to make a decision regarding the creativity of a work that of a sort courts are not supposed to involve themselves in. Because fictional characters exist in two legal worlds, copyright and trademark, the implementation of a protective scheme through copymark is suggested, the name indicative of the mark's origins. The owner of a fictional character wishing to apply for copymark protection would be required to show that the character: (1) originated in a work available for copyright registration; (2) had been in use in commerce; (3) had been in use for a minimum of five years; and (4) is famous.
Gregory S. Schienke,
The Spawn of Learned Hand-A Reexamination of Copyright Protection and Fictional Characters: How Distinctly Delineated Must the Story Be Told?,
9 Marq. Intellectual Property L. Rev. 63
Available at: http://scholarship.law.marquette.edu/iplr/vol9/iss1/3