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Table of Contents    Cover    MCLE Test

MCLE Article and Self-Assessment Test

Strength of Character 

Many weapons in the intellectual property law arsenal can be used to maintain ownership rights to fictional characters. 

By Mark S. Lee and Alison Spear Ullendorff 

Mark S. Lee is chairman and Alison Spear Ullendorff is an associate in the intellectual property litigation department at Manatt, Phelps & Phillips LLP, in Los Angeles. 

Shakespeare said "the play's the thing," but the characters in a play often remain memorable longer than the play itself. Whether mythic, literary, cartoon, or live action, characters have an uncanny ability to achieve status in popular culture as imaginary companions, friends, heroes, idols, and role models. Characters can have an enormous life span all their own, crossing generational lines from parent to child, and experiencing renewed appreciation by adults seeking reminders of childhood. In recent years the financial importance of fictional characters has grown significantly. From comic books to novels, toys to video games, Internet web sites to motion pictures, the licensing of characters and sales of products featuring characters generate billions of dollars per year.

Copyright has been the traditional intellectual property discipline called to the task of protecting characters. However, an array of other intellectual property laws, including trademark, unfair competition, dilution, design patent, state law rights of publicity, as well as other legal principles, can be employed to maximize protection for fictional characters.

Since copyright law protects original works of authorship that have been reduced to a tangible medium of expression, [1] it would seem to protect works in which characters appear rather than the characters themselves. Case law nevertheless has long held that visually depicted characters are separately protectable elements of a copyrighted work. [2] Ironically, purely literary characters have had a more difficult time obtaining separate protection, but more recently they, too, have been found separately copyrightable. [3]

A copyright can provide broad protection for characters since it generally prohibits unauthorized reproduction, alteration, distribution, performance, or display of copyrighted works. [4] However, a copyright also presents unique problems. Procedural requirements governing pre-1978 copyright law can create difficulties in determining ownership, a potentially significant problem since many famous characters were created before January 1, 1978, and/or March 1, 1989-the effective dates for the most recent copyright legislation eliminating those requirements. For example, failure to file a timely application for copyright renewal of a pre-1978 work might cause the work, and the character depicted in it, to fall into the public domain 28 years after initial publication. [5] The same fate will occur if there was a failure to place appropriate copyright notices on pre-1989 works. [6]

The ultimate determination of copyright ownership could turn on subtle factual distinctions that may be difficult to ascertain. The owner of the first work creating or depicting a character generally owns the copyright in the character, even if the copyright in subsequent works featuring the character is owned by someone else. [7] But the determination of the first work can be difficult as well. Cartoons, for example, may depict characters based on unpublished stories, story ideas, and/or exemplary drawings. Depending on the intent and contractual relationships of the parties, the time of creation of the cartoon featuring the character, the degree to which procedural requirements for copyright were observed, and the extent to which the cartoon published the underlying unpublished story and/or drawings, there could be considerable debate concerning authorship, ownership, and the term of protection in both the work and the character depicted in the work.

Split ownership can occur, inadvertently, when a character created in one medium crosses over to another. Under copyright law, the creators of authorized derivative works featuring a character own those elements of the character that are original to the derivative works. [8] Thus, a literary character made famous in motion pictures would be owned by the owner of the copyright in the underlying literary work as well as the owner of the copyright in the motion pictures to the extent the motion pictures added new elements to the character. [9] This type of split could have important implications for the term of ownership for the character: the literary aspects of the character may fall into the public domain for copyright purposes upon expiration of the term of protection of the literary work, but the newly added aspects of the character would continue to be protected by the more recent copyrights secured in the theatrical works-and these copyrights may be owned by someone other than the original creator of the character.

The protection afforded by copyright is not without gaps. Although it generally provides broad protection, some uses, most conspicuously "fair uses," are expressly allowed under the Copyright Act. "Fair uses" include uses "for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research," as well as a variety of other uses evaluated under a four-factor statutory test.10 This fair use exception allows third parties to argue that use of a character in a parody, for example, does not infringe the copyright of the character. [11] (See "Fair Is Fair," by Joseph von Sauers.)

The biggest drawback to copyright protection, however, is that it ends. Works published before January 1, 1978, generally have, at most, a 75-year span of protection. [12] Works created since that time generally have a term of life of the author plus 50 years. [13] Since many famous characters were created close to or more than 75 years ago, [14] there is a risk that those characters could fall into the public domain for copyright purposes. Therefore, other methods must be employed to protect characters. [15]

Trademark and unfair competition law can protect characters in ways that copyright law cannot during the term of the copyright as well as continue to provide certain protections for characters after the term of copyright has expired. A trademark is any "word, name, symbol, or device... adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others." [16] Thus, the primary purpose of a trademark is to identify and distinguish the source of the good or service. Trademark [17] - and, more broadly, unfair competition law [18] -prohibit a third party from using a trademark or otherwise acting in a way that is likely to confuse the public as to the source or origin of the good or service with which the mark is connected.

Trademark law protection allows a mark owner only to prevent unauthorized trademark uses. [19] Thus, a trademark owner generally cannot prevent a third party from using a mark in a way that is not likely to cause confusion, such as a noncompetitive use, a mere description of the goods or services offered, a functional use, or the identification of a person or product in a news-related story. [20] Trademark law might prohibit uses potentially allowed under the Copyright Act, such as parodies, if the parodic use creates a likelihood of confusion. [21]

A significant advantage of trademark protection is that it has no time limit. Trademark rights continue indefinitely so long as the mark is used in commerce and, in the case of registered marks, timely renewals are filed. Trademark rights generally are lost only through "abandonment" (the demonstrated nonuse and intent not to resume use of a mark in commerce) or "genericness" (the loss of distinctiveness that results from the mark being used to describe a product rather than a source). [22]

Unlike copyright law, trademark and unfair competition law allow protection of words, logos, and designs that otherwise would be in the public domain. This difference in protection is rooted in the historical development of these separate and distinct bodies of intellectual property law.

The copyright doctrine, embodied in Article I, Section 8, Clause 8 of the U.S. Constitution, found favor with the framers as a means of balancing the encouragement of creativity with public access to creative works by granting authors legal protection for their works, but only for a limited period of time. After the expiration of the copyright, an author's creation becomes part of the public domain, available for free use by the public at large. [23]

Trademark rights are common law rights that historically were acquired through use. As a result, trademark law reverses copyright by requiring an individual to select a word or design nominally from the public domain to represent his or her product or service. If that word or design comes to symbolize the product or service in the public mind, it obtains a "secondary meaning," and the individual acquires a property right in the mark. Secondary meaning is "[t]he power of a name or other configuration to symbolize a particular business, product, or company." [24] The word or design passes from the public domain into the protective ambits of trademark law. [25]

Trademark rights carry important implications for characters, since characters can be used to identify the source or origin of goods or services as well as embody the creative expression of an author. A character whose name and appearance has acquired secondary meaning for trademark purposes during or after the expiration of the term of copyright can be protected by trademark law even after the work creating the character has fallen into the public domain for copyright purposes. Such protection would allow the owner of trademark rights in a character to prohibit others from unauthorized trademark uses of the character. In light of the manner in which unfair competition law is interpreted, this can be very broad protection indeed. [26]

Courts have allowed continued trademark protection for otherwise public domain characters by balancing the copyright policies of free access to, and use of works in, the public domain with the trademark and unfair competition policies against deception and confusion of consumers. Courts evaluating these policies have concluded that if a character qualifies as a mark, the trademark protection afforded the character lasts as long as the trademark significance of the designation is maintained, even if the character has lost copyright protection. [27]

Case law has long recognized that the author of a distinctive character has the right to have the character exclusively identified with the author. Courts tend to favor the continued assertion of trademark rights for certain aspects of characters, including names, nicknames, physical appearance, and costumes, [28] but not for physical abilities, personality traits, or the artistic "style" of the author. [29]

Obtaining trademark protection for a character can be difficult. Some courts have created what could be characterized as a higher-than-normal showing of secondary meaning as a prerequisite to a finding of trademark protection for characters. [30] With this heightened requirement for characters, a character trademark that cannot designate the user of the mark as the producer of the character would be unacceptable.

The more rigorous secondary-meaning standard is associated mostly with characters that have become part of the public domain under copyright law and the character was not associated with the putative mark owner during the term of copyright. Seekers of trademark protection must show "a name that is associated in common thought, not merely with the thing produced, but with the source or origin of production." [31] The greater burden makes sense because when a public domain work is copied along with its title, there is little likelihood of confusion when even the most minimal of steps are taken to distinguish the publisher of the original from that of the copy. [32]

Secondary meaning for public domain characters historically has not been easy to establish. A line of cases expressly recognizes that certain public domain authors and characters have such strong, fixed primary meanings that they will never be able to acquire secondary meaning. When the heirs of Samuel L. Clemens sued to protect their trademark Mark Twain, for example, their complaint was dismissed on the grounds that "The Celebrated Jumping Frog of Calaveras County" and other historical material sold under the name Mark Twain was in the public domain and, thus, use of the name could not constitute unfair competition. The court concluded that the heirs could not demonstrate secondary meaning-at least in connection with literary property-and held that the name Mark Twain indicated only the writings of Samuel L. Clemens, which is a primary meaning. [33]

In another case, a maker of dolls named for and dressed to resemble well-known public domain fairy tale and nursery rhyme characters-specifically, Little Red Riding Hood, Little Miss Muffet, Little Bo-Peep, Mistress Mary, Little Miss Donnett, Curly Locks, and Goldilocks-registered the dolls' names as trademarks. The Ninth Circuit affirmed the district court's holding that the names of these characters, applied to dolls dressed to represent the characters, were invalid as trademarks. The court reasoned that such names do not designate the manufacturer of the dolls but quite clearly refer to various characters in children's literature. [34]

The popular series of children's books written and illustrated by Beatrix Potter had been sold under the trademark "The Original Peter Rabbit Books." Many of the books were not protected by copyright in the United States. Redrawings of the cover illustrations from seven of these public domain books began to appear in several new competing editions of Potter's works, even though three of the covers contained images that had actually been registered as book trademarks: the running rabbit, the dancing squirrel, and the reading mouse. Frederick Warne, the series' publisher, sued for trademark infringement. Although the court did not decide the question of whether the cover illustrations had acquired secondary meaning, the outcome of the case clearly turned on the issue. Warne was identified as the publisher or sponsor of goods bearing the illustrations; if they had gained secondary meaning, the defendant's use of these illustrations in "packaging" or "dressing" its editions needed to be judged as likely, or unlikely, to cause confusion. [35]

Most recently, a district court denied trademark protection for Horatio Alger as the name appeared in a written work for use in conducting seminars and workshops on reducing prejudice. The court concluded that Horatio Alger, as applied to activities designed to debunk the Horatio Alger "rags to riches" myth, identified the subject matter of the product, not its producer. Without drawing bright-line conclusions, the court noted that there were serious problems in alleging secondary meaning. [36] Although difficult, it is not impossible for an historical public domain character to obtain secondary meaning. Such was the case with the character Wyatt Earp popularized by the 1950s television series "The Life and Legend of Wyatt Earp." Though the name belonged to an actual historical person, Wyatt Earp had not become so much a part of the public domain that the court could not recognize the commercial value enjoyed by the character attributable to the television series. It found that Wyatt Earp had in fact obtained a secondary meaning associated with the producers of the series. [37]

Sometimes courts have had no difficulty finding secondary meaning in a character, especially particularly famous ones such as Mickey Mouse, Tarzan, Superman, and Wonder Woman. Both Mickey Mouse and Minnie Mouse have been found to be protected characters who have acquired a secondary meaning "of great value, favorable in all respects, and well-entrenched worldwide." [38] Courts have been reluctant to allow such distinct and obviously proprietary characters to "die" as a result of turning them over to the public for unrestricted use during or after the expiration of their copyright terms. The association between these characters and their source, generally developed during the copyright term by the copyright owner, is seen as so strong that it is likely that any use by third parties will evoke an association with the owner of the mark.

A court afforded protection to Tarzan on the grounds that it was such a strong mark that the public concludes that entertainment-related goods and services bearing the mark are exclusively supplied or authorized by Tarzan's author and creator, Edgar Rice Burroughs. As a result, the court found that the defendants' film, Tarz & Jane & Boy & Cheeta, created a likelihood of confusion with the registered mark Tarzan. [39] Courts afforded protection to the characters Superman and Wonder Woman against a franchise of singing telegram companies that performed skits featuring characters named Super Stud and Wonder Wench. The fact that for more than 40 years DC Comics had used its Superman and Wonder Woman marks to designate origin lay behind the court's decision that the marks had secondary meaning. As a result of the long association between DC comics and the characters, these marks have been regarded by the public as indicators that DC Comics is the source of a variety of literary works, products, and services. [40] In another case, a court held that the name "The Batcave" for retail bookstores infringed on DC Comics' registered trademark for Batman. [41]

State law and a recently enacted federal statute recognize a claim for the "dilution" of a trademark-the use of a mark in a noncompeting line of commerce in a manner that can cause the mark to lose its "distinctiveness," or its ability to clearly and unmistakably distinguish one source. A number of states have anti-dilution acts, and the new federal law applies a uniform standard for famous marks. [42] Dilution protection can be considerable because a character's trademark distinctiveness can be diluted even when the depiction of the character might qualify as a fair use under the Copyright Act. The same could be true even if no trademark violations exist because there is no confusion as to source or origin under trademark law. [43] Further, dilution protection can continue indefinitely.

State law also protects the "publicity" or "privacy" right of individuals. Although the precise parameters of the right varies from state to state, the right of publicity generally protects an individual's right to control commercial exploitation of his or her name, image, likeness, or other elements of his or her persona. [44] Depending on the jurisdiction, the term of protection can run from the life of the author plus 50 years, to life plus 100 years, or indefinitely, either without condition or so long as there is commercial exploitation of the publicity right. [45] Further, the scope of protection provided can vary, with some states precluding only explicit endorsement-related activities, other states precluding use of many aspects of an entertainer's persona and/or performance, and yet another state holding that there was no parody fair-use defense to a publicity claim. [46] Since ownership of publicity rights initially resides with the celebrity, if the celebrity is not the owner of the copyrighted work in which he or she appears, the various protections should be consolidated.

The right of publicity seems on its face to apply only to actual persons, so it does not at first glance appear to be a likely candidate for fictional character protection. However, individuals often create highly characterized and distinctive "performing personas," such as Charlie Chaplin's Little Tramp, the stylized antics of the Marx Brothers, or the comic characterizations of Laurel and Hardy. The merger in the public's mind of the actors' images with the depiction of the characters they portray can allow protection of these characters on the grounds of right of publicity. [47] This protection can extend beyond the copyright term if certain state laws apply. [48]

Patent protection is not available to fictional or literary characters depicted in two-dimensions. However, three-dimensional renderings of characters-as a toy, for example-can be protected under design patent law. [4]9 Patent law allows an inventor an exclusive monopoly in an invention for a certain number of years if the invention is a nonobvious, significant improvement over prior art or is otherwise novel or unique. Patent protection generally lasts 17 years, 50 significantly shorter than the copyright period, but the scope of protection can be distinctly broader, since patent law protects ideas rather than the specific expression of ideas protected by copyright. Thus, if elements of the three-dimensional rendering of the character can satisfy the statutory prerequisites for patent protection, a design patent could prevent others from copying the idea of the character as opposed to the particular expression of the character. Take, for example, the "Transformers," characters who could change from one mechanical form to another through the manipulation of their constituent parts. A number of recent characters shared this ability. Whoever succeeded in obtaining design patent protection for the first such character could have pressed claims against subsequent creators of characters who embodied the same idea, even if the use of the idea was not specific enough to either constitute a taking of an expression under the Copyright Act or create a likelihood of confusion under trademark or unfair competition law.

Owners of characters can also seek to enhance the characters protectability through contract, specifically with regard to licensees. [51] Contract protections could 1) prevent the unwitting split of ownership under copyright law; 2) extend rights between the parties beyond the term of protection in copyright, right of publicity, or patent law; 3) or otherwise eliminate restrictions that might cause either the original work or the work as created by the licensee to fall into the public domain.


My Hero

Protecting fictional characters requires a multiplicity of strategies. For the best results, one or more of the following actions should be considered:

  • To maximize copyright protection, the copyright owner should ensure that it owns the first work creating the character, published or unpublished. For works created before January 1, 1978, or March 1, 1989, procedural notice, registration, and renewal requirements must be satisfied and, if necessary, rights obtained from the heirs of the author. The owner should ensure that it owns any subsequent works that added significant new elements to the character, in the process observing all procedural requirements for subsequent works.        
  • For the most ironclad trademark protection, the owner of a character should consider using the name and image of the character in commerce to identify something other than the work itself, as soon as possible but definitely before expiration of the copyright term. As soon as there is a bona fide intent to use the mark in commerce, the owner should seek federal registration.        
  • If the character has merged in the public's mind with a particular living individual, consideration should be given to obtaining publicity rights from the individual-at least to the extent the individual depicts the character, and ownership of such rights is not already determined by applicable guild agreements.        
  • Patent protection should be sought for any unique, original three-dimensional depictions of a character.        
  • Negotiation of licensing uses should focus on the following contract-related issues, at a minimum: 1) ownership of the character under copyright law; 2) elements of the character embodied in derivative works created by the licensee; 3) good will and quality control associated with trademarks; and 4) publicity rights arising from the depiction of a character by living actors.-M.S.L. and A.S.U.



1 See 17 U.S.C. §102(a).
2 See, e.g., Detective Comics, Inc. v. Bruns Publications, Inc., 111 F. 2d 432 (2d Cir. 1940) (Superman character a copyrightable element of comic book); Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (9th Cir. 1978), cert. den'd, 439 U.S. 1132 (1979) (characters Mickey Mouse and Minnie Mouse protectable elements of copyrighted works even if placed in unrelated stories); Anderson v. Stallone, 11 U.S.P.Q. 2d 1161 (C.D. Cal. 1989) (characters from the Rocky motion pictures separately protectable).
3 Compare Nichols v. Universal Pictures Corporation, 45 F. 2d 119 (2d Cir. 1930) with Warner Bros. Pictures v. Columbia Broadcasting Systems, 216 F. 2d 945 (9th Cir. 1954) (no copyright infringement from use of character Sam Spade in new detective stories on television because Sam Spade did not constitute the "story being told" in the underlying works and hence was not separately copyrightable). Although the Ninth Circuit has never overruled its Warner Bros. decision, subsequent cases have consistently limited and minimized its holding. See, e.g., Walt Disney Productions, 581 F. 2d 751, and Anderson, 11 U.S.P.Q. 2d 1161 (Warner Bros. case limited to literary characters); Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995) (holding that literary character James Bond was protectable and distinguishing the Warner Bros. decision as involving the transfer of rights from the author to the motion picture producer rather than the copyrightability of the character).
4 17 U.S.C. §106.
5 See 17 U.S.C. §19, Copyright Act of 1909.
6 See National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F. Supp. 349 (S.D. N.Y. 1950), rev'd, 191 F.2d 594 (2d Cir. 1951).
7 Silverman v. CBS, Inc., 870 F. 2d 40 (2d Cir. 1989); Harvey Cartoons v. Columbia Pictures Industries, Inc., 645 F. Supp. 1564 (S.D. N.Y. 1986).
8 Silverman, 870 F. 2d 40.
9 See Metro-Goldwyn-Mayer, Inc., 900 F. Supp. 1287 (though author Ian Fleming owned copyright in the James Bond character as depicted in his books, MGM owned the copyright in James Bond as depicted in films).
10 17 U.S.C. §107.
11 But see Walt Disney Productions, 581 F. 2d 751 (rejecting fair use parody defense for use of Mickey Mouse and Minnie Mouse in adult-themed comic book). See 17 U.S.C. §§108-120 for other specific exceptions to copyright protection.
12 17 U.S.C. §304.
13 17 U.S.C. §302.
14 See Burrows v. Metro-Goldwyn-Mayer, Inc., 683 F. 2d 610 (2d Cir. 1982) (Tarzan first appeared in 1912); Musto v. Meyer, 434 F. Supp. 32 (S.D. N.Y. 1977) (early Sherlock Holmes in public domain); Detective Comics, Inc., 111 F. 2d 432 (Superman character first appeared in 1938); Thomas Andrea, Origins of the Dark Knight: A Conversation with Batman Artists Bob Kane and Jerry Robinson, in Robert M. Overstreet, The Official Overstreet Price Guide 1989-1990, at A-72, 240, 265 (19th ed. 1989) (Batman first appeared in 1939, Mickey Mouse in 1930, and Bugs Bunny in 1941).
15 See M. Christine Valada, Truth, Justice, and the American Way, Los Angeles Lawyer, Apr. 1996, at 28.
16 15 U.S.C. § 1127.
17 See Lanham Act §32(1), 15 U.S.C. §1114.
18 See Lanham Act §43(a), 15 U.S.C. §1125(a), which is a broadly worded provision creating a federal cause of action for unregistered marks, or false designation of origin, or false representation of goods or services. This statute proscribes numerous types of unfair competition, including passing off, reverse passing off, and false advertising. As a general rule, the same facts that support an action for trademark infringement will support an action for unfair competition under §43(a).
19 See The United States Shoe Corp. v. Brown Group, Inc., 740 F. Supp. 196 (S.D. N.Y. 1990).
20 See, e.g., CBS, Inc. v. Liederman, 866 F. Supp. 763 (S.D. N.Y. 1994), aff'd, 84 F. 3d 170 (2d Cir. 1995); Kazmaier v. Wooten, 761 F. 2d 46 (1st Cir. 1985); International Order of Job's Daughters v. Lindeburg & Co., 633 F. 2d 912 (9th Cir. 1980); New Kids on the Block v. News America Publishing, Inc., 745 F. Supp. 1540 (C.D. Cal. 1990), reversed on other grounds, 971 F. 2d 382 (9th Cir. 1990).
21 See, e.g., Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996) (parodies of well-known characters could constitute trademark infringement; First Amendment parody defense rejected); Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031 (N.D. Ga. 1986) (trading cards that parodied Cabbage Patch Kids infringed trademark). But compare Reddy Communications, Inc. v. Environmental Action Foundation, 477 F. Supp 936 (D. D.C. 1979); Pillsbury Co. v. Milky Way Productions, 8 Media Law Rptr. (BNA) 1016 (N.D. Ga. 1981) (parody of Poppin' Fresh Doughboy trademark not infringing because there was no likelihood of confusion).
22 See 15 U.S.C. §§1115(b)(2), 1127 (failure to use a federally registered mark in commerce for three years creates a presumption of abandonment); DuPont Celophane Co. v. Wax Products Co., 85 F. 2d 75 (2d Cir. 1936), cert. denied, 299 U.S. 601 (1936) (public's adoption of the term "cellophane" to describe type of product caused the word to become generic and therefore not a trademark).
23 Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Manufacturing, Inc., 510 F. 2d 1004, 1014 (5th Cir. 1975), cert. denied, 423 U.S. 868, 96 S. Ct. 132, 46 L. Ed. 2d 98 (1975).
24 Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F. 2d 200, 203 n.5 (2d Cir. 1979).
25 Id.
26 Third parties generally would be able to distribute copies of the public domain works that feature the character, and to utilize public domain images and the name of the character for advertising the distribution, so long as there is no chance for confusion by the public about the source or origin of the work or the characters in it. See Maljack Productions, Inc. v. Goodtimes Home Video Corp., 81 F. 3d 881 (9th Cir. 1996).
27 Frederick Warne & Co. v. Book Sales, Inc., 481 F. Supp. 1191 (S.D. N.Y. 1979) ("The fact that a copyrightable character or design has fallen into the public domain should not preclude protection under the trademark law so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods.").
28 See, e.g., In re DC Comics, Inc., 689 F. 2d 1042 (U.S. Court of Customs and Patent Appeals 1982).
29 See, e.g., Hughes v. Design Look, Inc., 693 F. Supp. 1500 (S.D. N.Y. 1988); Galerie Furstenberg v. Coffaro, 697 F. Supp. 1282 (S.D. N.Y. 1988) (the unique artistic style of Salvador Dali is not a trademark but should be protected through copyright). But see Romm Art Creations Ltd. v. Simcha International Inc., 786 F. Supp 1126 (E.D. N.Y. 1992) (posters imitating the distinctive style of an artist infringed the artist's "trade dress" rights).
30 See, e.g., G. & C. Merriam Co. v. Syndicate Publishing Co., 237 U.S. 618, 622, 35 S. Ct. 708, 709, 59 L. Ed. 1148 (1915) (the title of a public domain work generally cannot be protected by trademark, but the title cannot be used to deceive the public about the origin of the work: "use of the name must be accompanied with indications sufficient to show that the thing manufactured or sold is the work of the one making it").
31 Maljack Productions, Inc., 81 F. 3d 881, 887.
32 Leslie A. Kurtz, Protection for Titles of Literary Works in the Public Domain, 37 Rutgers L. Rev. 53, 77 (1984).
33 Chamberlain v. Columbia Pictures Corp., 186 F. 2d 923 (9th Cir. 1951).
34 Nancy Ann Storybook Dolls, Inc. v. Dollcraft Co., 197 F. 2d 293 (9th Cir. 1952).
35 Frederick Warne & Co., 481 F. Supp. 1191.
36 Cano v. A World of Difference, 1996 WL 371064 (N.D. Cal. 1996).
37 Wyatt Earp Enterprises, Inc. v. Sackman, Inc., 157 F. Supp. 621 (S.D. N.Y. 1958).
38 The Walt Disney Company v. Carl Powell, 698 F. Supp. 10 (D. D.C. 1988).
39 Edgar Rice Burroughs, Inc. v. Manns Theatres, et al., 195 U.S.P.Q. 159 (C.D. Cal. 1976). See also Patten v. Superior Talking Pictures, Inc., 8 F. Supp. 196 (S.D. N.Y. 1934).
40 See, e.g., DC Comics Inc. v. Unlimited Monkey Business, 598 F. Supp. 110 (N.D. Ga. 1984).
41 DC Comics Inc. v. Reel Fantasy, 696 F. 2d 24 (2d Cir. 1982). 
42 See Bus. & Prof. Code §§14330, 14335; 15 U.S.C. §1125(c); Jerome Gilson, Highlights of the Trademark Law Revision Act of 1988, in 3 Trademark Protection & Practice, at Comm-5 (1989).
43 See, e.g., Pillsbury Co., 8 Media Law Rptr. (BNA) 1016 (no copyright infringement from adult-oriented satire of characters on fair use grounds, but plaintiff liable under state anti-dilution statute); DC Comics Inc., 598 F. Supp. at 115 (character protected under dilution theory); Edgar Rice Burroughs, Inc., 195 U.S.P.Q. 159. But compare Warner Bros. Inc. et al. v. American Broadcasting Companies, Inc. et al., 720 F. 2d 231 (2nd Cir. 1983).
44 In California, see Civ. Code §§990, 3344; T.C.A. 47-25-1101 et seq.; Vanna White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992) (publicity rights infringed).
45 California grants protection for life plus 50 years. Civ. Code §§3344, 990. Some states recognize common law rights of publicity that can extend indefinitely following the death of an individual. See, e.g., Tennessee ex rel. Presley v. Crowell, 2 U.S.P.Q. 2d 1663 (Tenn. App. 1987).
46 See, e.g., Apple Corp. Ltd. v. ADPR, Inc., 843 F. Supp. 342 (M.D. Tenn. 1993); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 Sup. Ct. 2849, 53 L. Ed. 2d 965 (1977); Vanna White, 971 F. 2d 1395 (parody defense rejected).
47 See, e.g., Chaplin v. Amador, 93 Cal. App. 358 (1928). See also Groucho Marx Productions, Inc. v. Day and Night Co., Inc., 523 F. Supp. 485 (S.D. N.Y. 1981), rev'd. on other grounds, 684 F. 2d 317 (2d Cir. 1982); Price v. Hal Roach Studios, Inc., 400 F. Supp. 836 (S.D. N.Y. 1975) (Laurel and Hardy).
48 For example, Indiana provides 100 years of statutory protection while Tennessee provides indefinite statutory protection so long as there is commercial exploitation of the publicity rights.
49 See, e.g., Knickerbocker Plastic Co. v. Allied Molding Corp., 184 F. 2d 652 (2d Cir. 1950); Application of Yardley, 493 F. 2d 1389 (C.C. P.A. 1974) (author-inventor could obtain both copyright and design patent protection for three-dimensional depiction of character).
50 See 35 U.S.C. §§101, et seq.
51 Compare Burroughs, Inc. v. Metro-Goldwyn-Mayer, Inc., 205 Cal. App. 2d 441 (1962); Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F. 2d 610 (2d Cir. 1982). See also KGB, Inc. v. Giannoulis, 101 Cal. App. 3d 322 (1980). 

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