The practical difficulties of applying current trade mark law, actions for passing off and copyright law to literary fictional characters per se, independent of the original work

Fictional characters have a gigantic commercial and social appeal. Fans create fanfiction and other transformative works. Professionals create films, plays and artwork or literary, musical, and other works based on the underlying work by another author. These professionals as well as third parties are involved in character merchandising. Disney reported a revenue of USD 45.2 billion just for retail sales of worldwide licensed products in 2014.
\nThe appeal of fictional characters is not limited to artistic fictional characters (AFCs), but also encompasses literary fictional characters (LFCs), such as ‘Harry Potter’ and ’The Doctor’.
\nThe plot-independent protection of LFCs is more challenging than AFCs, because of their representation in words instead of images. Non-graphic representation inevitably leaves more to the imagination of the reader. Regardless, authors’ interests in their LFCs are worth protecting.
\nCopyright is more appropriate than trade mark law and actions for passing off when it comes to the protection of authors against unauthorized exploitation of LFCs per se for new professional literary and other works, fanfiction, mash-ups or other transformative works by amateur content creators, as well as unauthorized character merchandise. Copyright vests in the author automatically. No formalities are required. No cost is involved. Moreover, under copyright law LFCs would benefit from a set of moral rights, which could protect the LFC per se i.a. against unsavoury distortion or attribution to another than its creator.
\nTrade mark law is ill equipped for the protection of LFCs, i.a. because names of LFCs are often devoid of distinctiveness and are descriptive of posters, notebooks, and similar products which feature the characters.
\nPassing off actions are also suboptimal. Like trade marks, an action for passing off is also trader orientated instead of author orientated. This leads to an imbalance favouring whoever fulfils the criteria for a claim that the tort passing off has been committed. Thus, even a free-riding trader can claim protection against the author who actually created the LFC.
\nHowever, in order to accommodate copyrightability of LFCs per se, a combination of judicial re-interpretation and changes to the Copyright, Designs and Patents Act 1988 are required. These are set out in this thesis. The effect of the ‘new‘ originality standard (‘the author’s own intellectual creation‘) on LFC copyrightability shall be discussed as well.
\nBoth foreign common law jurisdictions (namely Canada and the USA) as well as civil law jurisdictions (namely Germany and France) provide insights into the protection of LFCs by copyright. Each country has its own strong points to offer: In Canada, LFCs are copyrightable, if they are distinct and recognized by the public. Moreover, an exception concerning user-generated content, which affects fanfiction, was introduced into the Canadian Copyright Act 1985 by the Copyright Modernization Act 2012. In the USA, LFCs have been protected since 1930 and two tests have been developed to judge LFC copyrightability. In Germany, quite a number of copyright cases concerning LFCs, in particular with regard to character merchandising, have been decided. Even the Supreme Court held that LFCs can attract copyright. In France, LFCs can enjoy copyright protection even after the economic rights have expired, because the moral rights last indefinitely.
\nIn addition to critically evaluating how LFCs could be protected by copyright plot-independently, this thesis also considers how further legal certainty could be provided for parties intending to reuse existing LFCs. In this regard, this thesis looks i.a. into the viability of an extension of PLSclear in collaboration with the Copyright Hub to licensing of LFCs via this system.

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