Abstract

In this article, I set out a theoretical framework for analyzing fictional copyright protection of fictional characters in literature. Using this framework, I argue that the two most prominent approaches that U.S. courts have adopted with respect to fictional character copyright (the Nichols test and the Sam Spade “Story Being Told” test) are unsustainable. The idea of distinct delineation that came out of Nichols may be understood in two ways: on one view, fictional characters are distinctly delineated if they deviate from a literary type. On the other view, they are distinctly delineated if they are attributed a sufficient number of properties in the fictions where they appear. Both views succumb to serious objections, while the test in Sam Spade is no better. The failure of the two judicial tests suggests that, instead of asking questions about fictional character copyrightability, courts should instead focus on the substantial similarity question. In the last part of the paper, I draw a distinction between two types of fictional character copyright infringement cases (transformations and transfers), and suggest that a Nichols-type substantial similarity analysis is all that is required in transformation situations. Although the focus of this article is U.S. law, the issues discussed and the analyses proposed may prove helpful in addressing fictional copyright in other jurisdictions as well.