In the world of intellectual property, characters from literature, film, and other media can be incredibly valuable assets. However, not all characters enjoy perpetual intellectual property legal protection. Some characters enter the public domain, making them free for anyone to use without the need for licensing or permissions. In this blog, we’ll explore the concept of public domain characters, focusing on literary and graphical characters, how copyright law protects these characters, and how to determine when a character has entered the public domain.
Types of Public Domain Characters and Intellectual Property Law
When discussing public domain characters and intellectual property, it’s essential to distinguish between two main types:
- Literary Characters: These are characters depicted through text, such as those found in novels, short stories, and plays. Examples include Sherlock Holmes from Arthur Conan Doyle’s works or Huckleberry Finn from Mark Twain’s novels.
- Graphical Characters: These are characters represented through visual art, such as those found in comics, films, or animations. Examples include Mickey Mouse from Disney’s animations or Superman (Clark Kent) from DC Comics.
Both literary and graphical characters can be protected under copyright law, provided they are sufficiently original and distinctive. Copyright protection prevents others from using these characters without permission from the copyright holder.
How Are Public Domain Characters Protected by Copyright Law?
Public domain characters are those whose intellectual property protections have expired, meaning they are no longer covered by copyright law. This can happen when:
- Copyright Term Expiration: The copyright term for a character expires after a certain period, depending on when the work was created and published. For works created after January 1, 1978, the copyright term is the life of the author plus 70 years. For works created before this date, different rules apply, often involving a 95-year term from the date of publication.
- Failure to Renew Copyright: In the past, copyright holders needed to renew their copyrights after a certain period. Failure to do so resulted in the work entering the public domain.
Once a character enters the public domain, it is no longer protected by copyright, and anyone can use it in their creative works without seeking permission or paying royalties.
Calculating Copyright Terms for Public Domain Characters
To determine whether a character has entered the public domain, you need to calculate the copyright term of the work in which the character first appeared. Here’s a simplified approach:
- Determine the Date of Creation: Identify when the original work was created or published.
- Identify the Applicable Law: Depending on the creation date, different copyright laws may apply. Works created after January 1, 1978, follow the “life of the author plus 70 years” rule, while earlier works may fall under the 95-year term.
- Calculate the Expiration Date: Use the applicable law to calculate when the copyright expires. If the date has passed, the character is in the public domain.
Popular Public Domain Characters
Some of the most famous public domain characters include:
- Sherlock Holmes: Although some of Arthur Conan Doyle’s later works are still under copyright, many stories featuring Sherlock Holmes are now in the public domain.
- Dracula: The iconic vampire character from Bram Stoker’s 1897 novel is in the public domain.
- Robin Hood: The legendary English folk hero has long been in the public domain, allowing countless adaptations and reinterpretations.
- Frankenstein’s Monster: Mary Shelley’s “Frankenstein,” first published in 1818, introduced a character that is now widely used in various media.
- Tarzan: Created by Edgar Rice Burroughs, Tarzan first appeared in 1912 and has since entered the public domain.
Landmark Copyright Cases and Public Domain Characters
- Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc. (1948)
- Issue: This case involved the character “Sam Spade” from Dashiell Hammett’s The Maltese Falcon. The court had to determine whether a character could be protected separately from the story in which it appeared.
- Holding: The Ninth Circuit Court held that the character of Sam Spade was not protectable by copyright independently of the story. This case is significant as it highlights the challenges of character protection under copyright law and whether a character is among public domain characters.
- Detective Comics, Inc. v. Bruns Publications, Inc. (1940)
- Issue: The case centered around whether the character Superman, created by Jerry Siegel and Joe Shuster and owned by Detective Comics, was infringed by a character called “Wonder Man” created by Bruns Publications.
- Holding: The court found that “Wonder Man” was an infringement on “Superman,” emphasizing that graphical characters, particularly superheroes with distinct traits, could be protected under copyright law. These were not deemed to be public domain characters.
- Anderson v. Stallone (1989)
- Issue: The case involved a screenplay written by Timothy Anderson for a proposed Rocky IV movie, which used the characters from the Rocky films. Anderson sued Sylvester Stallone, claiming his script was used without permission.
- Holding: The court ruled that Anderson’s script was a derivative work based on copyrighted characters owned by Stallone and therefore not among public domain characters. This case established that characters from a series of movies could be protected, and derivative works based on these characters required permission from the copyright owner.
- Walt Disney Productions v. Air Pirates (1978)
- Issue: The Air Pirates, a group of underground cartoonists, created comic books that depicted Disney characters in an adult-themed context. Disney sued for copyright infringement.
- Holding: The court ruled in favor of Disney, finding that the Air Pirates’ use of Disney’s characters was not protected as parody and constituted copyright infringement. This case underscored the strong protection afforded to graphical characters under copyright law.
- Salinger v. Colting (2009)
- Issue: This case involved a novel titled 60 Years Later: Coming Through the Rye, which featured a character similar to Holden Caulfield from J.D. Salinger’s The Catcher in the Rye. Salinger sued for copyright infringement.
- Holding: The court granted a preliminary injunction against the publication of the book, stating that it likely infringed Salinger’s copyright by using his character. This case is significant for its discussion on the protection of literary characters.
These cases highlight the complexities of copyright law when it comes to protecting literary and graphical characters, demonstrating the varying degrees of protection based on the originality and distinctiveness of the characters involved.
Public Domain Characters Attorney Consultation
When considering using public domain characters in your videos, games, movies, books, and more, it’s crucial to consult with an experienced copyright and entertainment law attorney. They can help you navigate the complexities of copyright law, ensuring your use of these characters is legally sound. Contact David Nima Sharifi, Principal Attorney at L.A. Tech and Media Law Firm, to get expert trademark consultation on your online brand protection strategy.
