Edited by

Michael Carroll

Document Type

Article

Publication Date

8-1-2025

Abstract

The doctrine of character copyright is an eccentricity in copyright law that should either be abandoned or substantially reformed. Originally limited to literary characters, this doctrine decomposes a narrative work in order to recognize characters as works of authorship independent of the narrative works from which they are derived. Claimants generally seek independent protection for characters for three, sometimes overlapping, reasons: (1) to repackage what would otherwise be a weak claim of substantial similarity if comparison were to be made with the work(s) from which the character has sprung; (2) to overcome obstacles posed by prior licensing decisions that have subdivided ownership in the source work(s), leaving the party claiming character protection without standing to assert rights in the source work(s); or (3) to retain some exclusivity in elements of the original source work that should be free for all to use when the original source work has fallen into the public domain, even if some derivative works retain protection.

This symposium contribution first provides a high-level synthesis of the legal literature on character copyright. It then discusses the appeal pending in the Ninth Circuit in Carroll Shelby Licensing, Inc. v. Halicki as a use case to demonstrate the pitfalls of character copyright. Recognizing that the courts are unlikely to fully abandon the character copyright doctrine, this Essay closes by arguing for reform. First, it provides an interpretation of the Ninth Circuit’s Towle test for character copyright that avoids the risks of using trademark analysis to decide a copyright question. Second, it argues in favor of procedural reform under which a party claiming character copyright must plead the claim with particularity for reasons analogous to those that have inspired courts to impose a particularity requirement in trade secret litigation. It shows how the claimed car character in Halicki would not have been able to meet a particularity requirement, and substantial litigation costs could have been avoided.

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