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The Protection of Fictional Characters
Characters, whether described merely in writing in the text of a work or depicted in graphics, can be of enormous economic value, often far in excess of the value of that text. Characters can form the basis for motion pictures, television productions, video games, web sites, merchandising rights and other such forms of exploitation that can make the income received from the ownership of rights in characters dwarf the income from the text in which the characters appear. As but one example, how many of you have read the original book “Pinocchio” compared to those that have had, as a child, some merchandise bearing the likeness of that character?
Thus, consistent with my steady theme throughout all my writing and work on behalf of my clients to “Own Everything!,” let me discuss some of the rather complex set of laws governing the rights in characters. These laws fall generally within the scope of trademark and copyright laws, although in a given instance the protection of characters can also be the subject of contract law if there is some license or other agreement dealing with the licensing or other use of characters, as well as right of publicity laws and perhaps other laws as well, both federal and state.
Trademark
Rights to characters may exist under federal trademark law as well as under state laws dealing with unfair competition and passing off. The key to federal trademark protection is that marks are protectable only to the extent that they are used to identify the source of certain products and/or services. Thus it is not merely having a description or depiction of a character, whether in text or graphic format, that matters. Instead, trademark rights depend upon having a character that is used in relationship to specific goods and/or services and which character is then deemed to be a “source identifier.” The latter term means that the character is considered in the minds of the public as identifying a particular source of the goods and/or services.
Before such rights of trademark in characters can be found to exist, the law requires that the character must have developed what the law refers to as a “secondary meaning.” This refers to the legal doctrine that when a consumer sees the particular character, it associates it with a particular source. Of course the best example would be Mickey Mouse. Everyone on the planet knows that that character stems from a particular source…Disney. To the same extent would be Bugs Bunny, the source being Warner Bros.
http://www.ivanhoffman.com/characters...
