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Copyrightability of Fictional Characters – the Difference Between Superman and Chessmen

After the release of the hit animated motion picture Inside Out, Denise Daniels and The Moodsters Company sued the Walt Disney Company for copyright infringement and alleged that the Inside Out characters impermissibly resembled Daniels’ Moodsters characters. See Daniels v. Walt Disney Co., No. 17-CV-4527 PSG (SKx), 2018 U.S. Dist. LEXIS 117569 (C.D. Cal. May 9, 2018). After the district court granted Disney’s motion to dismiss based upon its finding that The Moodsters characters were not protectable by copyright, Daniels appealed. On March 16, 2020, the Ninth Circuit affirmed the lower court’s dismissal agreeing The Moodsters did not qualify for copyright protection. See Daniels v. Walt Disney Co., 952 F.3d 1149 (9th Cir. 2020).

Inside Out Movie PosterDenise Daniels, an expert on children’s emotional intelligence, and her company, The Moodsters Company, designed and promoted five fictional characters, collectively named “The Moodsters.” The Moodsters were five color-coded anthropomorphic emotions, each representing a different human emotion, designed to help children cope with experiences such as loss and trauma. There were three iterations of The Moodsters: (1) The Moodsters Bible (“Bible”) released in 2005; (2) a 30-minute pilot episode released in 2007; and (3) a line of toys and books sold at Target and other retailers beginning in 2015.

The Ninth Circuit relies on two different tests to determine nature and extent of character protection. The first focuses on character distinctiveness and consistency, stems from test from DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), and is known as the “Towle Test.” The second, dubbed “the story being told” test, stems from Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.3d 945 (9th Cir. 1954) (the “Warner Brothers Test”).

The Moodsters failed to meet the Towle test because they were not especially distinctive but rather merely “lightly sketched” characters lacking in consistent, identifiable character traits and attributes. Under Towle, a character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities,” (2) the character is “sufficiently delineated to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes,” and (3) the character is “especially distinctive” and “contain[s] some unique elements of expression.” Because each individual Moodster character had physical as well as conceptual qualities, each met this first prong.

But the second prong requires “consistent, identifiable character traits and attributes” even if a character that appears in multiple productions or iterations “need not have a consistent appearance.” The characters’ traits, however, must be apparent and recognizable whenever they appears. For example, characters such as James Bond, Superman, and even the Batmobile meet the test because although their physical characteristics may change over various iterations, they maintain consistent and identifiable character traits and attributes across various productions and adaptations.

ChessmenJames Bond consistently possesses traits such as his cold-bloodedness, overt sexuality, love of martinis “shaken, not stirred,” physical strength, and sophistication. See Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. supp. 1287 (C.D. Cal. 1995). Similarly, Superman is consistently portrayed as a man with miraculous strength and flying abilities who battles evil and injustice while concealing his superpowers beneath ordinary clothing. See Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2nd Cir. 1940). Likewise, the Batmobile is always a crime-fighting car that allows Batman to defeat his enemies and consistently has jet-engines, high-tech weapons, and the ability to navigate through landscapes ordinary vehicles could not. See DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015); see also Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.2d 1213 (9th Cir. 2008) (a yellow automobile called “Eleanor” starring in Gone in 60 Seconds displayed consistent, widely identifiable traits and was especially distinctive in that the thefts of other cars in the film went largely as planned, but whenever the main human character tried to steal Eleanor, circumstances became complicated).

Unlike Superman, James Bond, the Batmobile, and Eleanor, The Moodsters had few identifiable character traits and attributes that were consistent over the three iterations, other than the idea of color and emotions. The Ninth Circuit viewed the notion of using a color to represent a mood or emotion as an idea not susceptible to copyright protection. The Moodsters were inconsistent across all variations in their physical appearance, their names, and their relationship to emotions.

Moreover, The Moodsters were not “especially distinctive” and did not contain “unique elements of expression.” Unlike the Batmobile, which has a unique and highly recognizable name, each of the five Moodsters had a different name in every iteration. Daniels argued The Moodsters were unique because they each represent a single emotion, which can manifest in different way; however, the appellate court found this insufficient pointing to The Moodsters’ otherwise generic attributes and character traits.

A plaintiff cannot prove copyright infringement by pointing to features of his work that are also found in the defendant’s work but are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another. See Gaiman v. McFarlane, 306 F.3d 644 (7th Cir. 2004). Characters with such generic attributes can be described as “stock characters,” some examples of which include a drunken old bum, a fire-breathing dragon, a talking cat, and a masked magician. These generic “stock characters” are not copyrightable.

The Moodsters also failed to meet the Warner Brothers Test because neither the Bible nor the pilot episode exhibited any prolonged engagement with character development or a character study of The Moodsters. Under this second test, copyright protection only extends to literary and graphic characters that constitute “the story being told” in a work. A character is not copyrightable where “the character is only the chessman in the game of telling the story” and does not embody the story being told. The Ninth Circuit found The Moodsters served primarily as a means by which particular emotions were introduced and explored, putting them in the “chessmen” category.

Finally, the Ninth Circuit rejected Daniels’ claim that the ensemble or collection of all five characters together meets one or both of those tests. Since each individual character lacked the degree of distinctiveness and delineation needed for copyright protection, the ensemble of characters was no more copyrightable than the individuals, at least in this case.

COPYRIGHT © 2022, STARK & STARKNational Law Review, Volume XI, Number 32
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About this Author

Gene Markin Attorney Stark & Stark Law Firm
Shareholder

Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage...

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