Fictional characters have become exceptionally valuable assets, now consistently the subject of lucrative licensing agreements. Their unique ability to serve expressive as well as source identifying functions supports such agreements by allowing strong intellectual property protection to be granted under both copyright and trademark doctrines. Nonetheless, the intellectual property protection afforded to fictional characters must be carefully considered in order to avoid unjustified encroachments upon the public domain. This Article examines the copyright and trademark protection available to fictional characters and offers a mechanism for ensuring that such protection does not lead to the creation of impermissible, perpetual copyrights. The protection available to fictional characters under copyright law is discussed at length, with a particular focus on the various standards of copyrightability. This Article also evaluates the protection available under trademark law, emphasizing the ability of general public recognition to distort the trademark analysis. Finally, in examining the broader consequences of providing both copyright and trademark protection to fictional characters, this Article proposes that the Supreme Court’s holding in Dastar Corp. v. Twentieth Century Fox be explicitly incorporated into the trademark analysis for fictional characters. Careful adherence to the principals of Dastar will substantially improve the quality of trademark protection provided to fictional characters, thereby ensuring that any encroachment upon the public domain is in fact justified.
Foley, Kathryn M., "Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide Note" (2009). Connecticut Law Review. 20.