Abstract
The standard for the copyrightability of fictional characters needs clarification. Courts have long relied on the delineation test to determine whether a character is sufficiently developed to merit protection separate from its underlying work, yet the circuits diverge on how this test should be applied. The Ninth Circuit’s Towle test relies on overruled precedent, treats characters as static, imposes an originality threshold beyond that required by the Copyright Act, and risks extending protection to inanimate props. In contrast, the Second Circuit has tied delineation more clearly to the Act’s core requirements of originality and fixation, offering a more principled approach. This Comment argues that courts should first determine whether the subject at issue qualifies as a true character, excluding objects lacking personality and agency. It further contends that the delineation inquiry should be grounded in originality and fixation as conceptualized by the Copyright Act and that courts should not distinguish between literary and graphic characters. A revised test, informed by Conan and Toho, would provide a uniform, flexible, and constitutionally sound framework for protecting fictional characters while preserving the limits imposed by doctrines such as scene à faire and the public domain.
Included in
Communications Law Commons, Comparative and Foreign Law Commons, Entertainment, Arts, and Sports Law Commons
