IP Protection and Limitations for Fictional Characters: Trademark, Copyright, and Contract Rights

Recording of a 90-minute premium CLE webinar with Q&A


Conducted on Wednesday, April 29, 2020

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Program Materials

This CLE webinar will guide IP counsel on the legal protections available for fictional characters. The panel will discuss strategies for using copyright, trademark rights, and contract provisions to build equity in fictional characters. They will also discuss limitations on exclusive use and will offer best practices for protecting fictional characters.

Description

The merchandising of fictional characters can be highly profitable. To maximize legal protection, counsel must aid clients in carefully managing the creation, acquisition, and exploitation of rights in characters. Character creators should be mindful of the possibility of prior conflicting rights that may pose a threat or foreclose essential business opportunities. At the same time, entrepreneurs planning to build businesses on a fictional character should understand that their rights may be limited in unanticipated ways.

Copyright, trademark, and contract law all come into play when creating and licensing rights in a fictional character. Copyright law protects the characterization of a fictional character as part of an original work under copyright. Trademark law may protect the character's name and its distinctive design elements, provided that these elements are used in commerce, in connection with specific goods or services. Non-employee contributors may own rights in characters they create--even if created on behalf of someone else; these rights can be acquired through contracts. Copyright and trademark rights exist independently of one another and provide different advantages and terms of protection to the character's owner.

However, there are limitations to each of these types of intellectual property protection. Trademark law does not provide exclusive rights in the character's general traits and abilities. Copyright protection requires originality. Character creators and owners and their IP counsel must understand the limitations as well as the advantages of the protections available.

Listen as our panel examines the legal protections available for fictional characters. The panel will discuss both protecting characters through copyright law and trademark. The panel will also discuss limitations on exclusive use and will offer guidance to counsel on protecting fictional characters.

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Outline

  1. Fictional characters and the law
  2. Copyright protection for fictional characters
  3. Trademark protection for fictional characters
  4. Limitations for protection of fictional characters, such a fair use, First Amendment, and public domain

Benefits

The panel will review these and other key issues:

  • What aspects of a fictional character are protected by copyright, and what can be protected with trademark law?
  • How should the work of independent contractors be managed to result in protection for the character's owner?
  • What limitations are there in protecting fictional characters under copyright law? Under trademark law?
  • What best practices should counsel follow in advising clients about their exclusive rights and their ability to protect their creations of fictional characters?

Faculty

Frangiosa, Christina
Christina D. Frangiosa

Member
Eckert Seamans Cherin & Mellott

Ms. Frangiosa counsels clients across various industries about IP and technology law. Her combined litigation and...  |  Read More

Schreyer, Amanda
Amanda E. Schreyer

Counsel
Morse Barnes-Brown & Pendleton

An experienced transactional lawyer, Ms. Schreyer focuses her practice on licensing and technology; intellectual...  |  Read More

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