Abstract
Characters are a breed apart in copyright law. Only they have a special standard of creativity. Only they must have unique elements to qualify for protection. Only they are exempt from analysis as derivative works when they appear in multiple works, and only they are required to maintain consistent features in order to maintain protection previously earned. These and other idiosyncrasies do not follow naturally from precedent or statutory law, but operate heedless of and even contrary to legal authority.
This article shows that, after fifty years of undifferentiated treatment, the courts suddenly began to apply divergent rules to characters. It describes how this anomaly began with the almost universal misreading of the famous “Sam Spade case,” then continued until a full body of aberrant law was used to determine protection for this essential feature of narrative art. It establishes that the singular rules applied to characters not only complicate the analysis but frustrate the purpose of copyright law: the promotion of cultural expansio
Repository Citation
Robert F. Helfing,
Characters in Copyright Law: Extraordinary Rules for Ordinary Content,
30
Marq. Intell. Prop. & Innovation L. Rev.
1
(2025).
Available at:
https://scholarship.law.marquette.edu/ipilr/vol30/iss1/3