We all learned in elementary school stealing is wrong. If it is not yours, then you cannot use it without asking permission. You cannot take someone’s crayons. You cannot go home with someone else’s baby doll. You cannot ride and take someone else’s bicycle. A simple concept even kindergartners can grasp.
However, for some reason, there is this idea that those basic, elementary rules do not apply when it comes to creative content. In case you had any doubt, please allow me to be painfully and obviously clear. As a very general rule, you cannot use someone else’s creative work without getting permission. They created it. They own it, and they alone have a right to say how it is used. This applies to movies, books, screenplays, characters in movies, characters in books, cookbooks, computer programs, magazines, sheet music and songs, just to name a few.
Recently, the idea of using a well-known fictional character keeps finding its way to me. The first time was when I read the story about Hello Kitty and Minnie Mouse getting into a fight in Times Square. You can read the story by going HERE. If you have been to Times Square recently you have seen lots of these walk-around characters who all look somewhat legitimate, but each is just slightly off from the real thing. They pose for pictures with tourists for tips. In a very real sense, they are infringing upon the copyright held in the characters.
The almost-legitimate-Minnie Mouse might call herself Rita Rat. Her outfit might be a different shade of red. Her ears might not be perfectly symmetrical or as large, but the person inside the costume is still playing off the copyrighted elements embodied in the Minnie Mouse character owned by Disney.
One of the early cases defining this idea is Nichols v. Universal Pictures Corp way back in 1930. Judge Learned Hand recognized that characters could receive copyright protection; however, he did so with something for all creators of works to keep in mind. He stated,
“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”
Here, Minnie Mouse has several distinguishing features making the character fully developed, thus able to receive copyright protection. She has the perfectly symmetrical enlarged ears. She usually appears in her signature red and white polka dotted dress with yellow shoes. When you hear her helium like voice, you can picture in your mind the character. Even though she might be removed from a cartoon featuring her friend Mickey Mouse or from the book, there is still copyright protection in the character because it is fully developed with distinguishing characteristics that set her apart from any other cartoon mouse.
With it established characters can and more often than not receive copyright protection, it is then very logical to go back to our original premise that the copyright owner is the one who has the exclusive rights to say how the character appears and how it is used. You cannot take Minnie Mouse and decide to create a coloring book around her character. You cannot create a new feature film with Minnie Mouse or write a book. You cannot even create a cookbook with Minnie Mouse. While a cookbook does not initially seem like a logical line of work, I think there are very good arguments to be made that Disney might want to create a children’s cookbook featuring a beloved character. The copyright owner has the exclusive rights to derivative works.
When you attempt to use the likeness of a fictional character, you must proceed with caution. Ask yourself, are you using a distinguishing characteristic of the character so that a casual observer would think your activity is linked with the company who actually owns the copyrighted character? Is this something the character is known by?
I think most fictionalized characters can be summed up with two to three distinguishing traits. For example, with Frankenstein you would say the green face, square head and bolts in the neck. Darth Vader’s three main distinguishing features are the heavy breathing with the resonating voice, black squared off head piece and all black clothing. Using a copyrighted character, even if not exactly as the character appears, is still infringement.
The copyright owner has the final say-so in how their property is used, just like when you were a child and wanted to ride someone else’s bicycle. It did not matter that you were not going to break the bike. It did not matter if your friend had allowed your other friend to ride the bike. It did not matter that you were not going to charge other people for use of the bike. The bicycle was not yours, so you did not have permission to do activities like you owned it. It’s the same way with copyright law.
It is the same with copyrighted characters. Unless they belong to you, you cannot use them without committing copyright infringement. Now, go play nice and respect intellectual property rights.
You can read an early post about copyright in fictional characters by reading It’s Alive! It’s Alive! – Mummifying Copyright Law.
What examples have you seen of characters, especially cartoon characters used in ways the creators would not agree? Take part in the Comments section below and Stay Tuned In!
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