The article about the protection of characters for the upcoming Public Domain Encyclopedia Vol. IV is done!
here below you can read an excerpt:
U.S. copyright law (title 17 of the United States Code) provides
copyright protection for literary and artistic works, depending on the
nature of the work and the way it is presented. A cartoon is normally
considered a work of the visual arts unless textual elements are
preponderant. If so, it should be registered as a literary work.
As of today, copyright protection begins automatically when a work is
initially created in a fixed form (e.g. a manuscript), putting cartoons
and comic strips among the types of works enjoying authorship protected
by copyright.
Copyright protection extends to any copyrightable pictorial or written
expression contained in the work, including a drawing, a picture, the
depiction or the written description of a character.
Protection does not, however, extend to the title or general theme for a
cartoon or comic strip, the general idea, the character name, or any
intangible attribute. However, a character maybe protected also under
state, common, or trademark laws, while names and titles may enjoy
protection under state laws or state and federal trademark laws.
All in all, whenever a character is involved in “property ownership” and
intellectual property protection” the main goal of its creator (or
owner) is to clad him in a protective “armor” combining copyright,
trademark, and protection against unfair competition, thus enjoying the
convergence of different legal settings.
In details, the creator (or owner) seeking protection for a character
must always keep in mind the commercial exploitation potential of his
creation, as “property ownership” and “intellectual property protection”
are not simply defensive tools, they are means that help making a
creative expression profitable, enjoyable and known to the human
community.
In such a way, protection for a character must be seeked, taking into account:
A. the profits coming from the character commercialization, a process
that may alter the character’s aspect, setting, artistic approach,
garments, etc., making him different from its original conceptualization
and graphic depiction, thus requiring copyright carefulness, as the
character may be brought to an “independent life” by the dynamism of the
market, detecting if each visual and non-visual representation of a
character must or must be copyrighted;
B. The capability of a character to be recognized as a “mark” and thus be protected by trademark law;
C. The force of the character that derives from extended use on several
products and in different services that makes the character take life in
the eye of the public, but ultimately making him different from how he
was originally devised by its creator. Logically, the more a character
is widespread through a variety of services and products (and thus
altered by such use), the higher is the risk for misuse and unfair
competition, thus requiring a firm hand to check how, when and why a
character is used, commercially-wise.
