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

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.