Fictional Characters & the Law

November 1998
by Lloyd L. Rich

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Lloyd RichLloyd Rich is an attorney practicing publishing and intellectual property law. He can be reached at 303-388-0291 or Jennifer L. Fountain, a third-year student at the University of Denver School of Law, provided the research for this article.

On my Web site, I have an article regarding the legal protections provided for a graphic character-such as Mickey Mouse or Superman-that is depicted by a cartoon or other graphic representation.1 However this article will focus on the protection available for a “fictional character” (also referred to as a “literary character”)-such as James Bond, Sam Spade, Sherlock Holmes, or Hopalong Cassidy-who is first represented by a “word portrait” and then possibly at some later date by a graphic representation.

Even though most stories and plots are forgotten, the nature of a fictional character frequently remains fixed in a reader’s imagination; this fixation may then provide the true underlying value of a particular literary work or series. Because of the “value” that may be inherent in a fictional character, the creator and/or publisher should always take steps to ensure that the fictional character is protected, especially if there may be possibilities to use the fictional character in book sequels, or to license the use of the fictional character for films, television programming, electronic or other media, or merchandising. It is only by maintaining control and protection of the fictional character that revenue streams may be maximized for the creator/publisher of that character.

Three distinctive bodies of law-copyright, trademark, and unfair competition-provide overlapping protection for a fictional character. This has led one commentator to co…IBPA Members – Click here to view the full article (login required).

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