Copyright in Characters: What Can I Use?

Q&A: “How do [some video games] get away with using so many famous franchise movie characters? We got DMCA'd for making a robot graphic that ‘resembled R2D2’.” Good question! The answer is actually more complicated than it might seem. Let’s dive into this:

Copyright Law:

For a work to qualify for copyright protection under current US copyright law, it must be an original work of authorship, fixed in a tangible medium of expression. “Original work of authorship” means it must be independently created by the author and possess some minimal degree of creativity. The creativity bar is pretty low, and most things will pass as being creative.

“Fixed in a tangible medium of expression” means that it has to exist somewhere somehow, i.e. writing something down, recording a song, or drawing a picture. Consequently, copyright law does not protect ideas; only the original, fixed expression of that idea by the author is protected.

The distinction here is expression of the idea. Actual copying of the expression of the idea is likely copyright infringement, especially in the commercial context, however copying only the basic idea behind the work is copying unprotected ideas and isn't copyright infringement.

Copyright in Characters:

For characters, the character only becomes protected under copyright law once it becomes a unique expression, i.e. drawing your own rendition of something or adding certain attributes. Concepts like robots, men in black, beefy army dudes with guns, samurai, etc., are called “stock” characters, and don't rise to the standard of creative until the author adds something more or expresses that concept.

This line can get pretty blurry, especially in the context of written stories since there often isn’t a visual element and the author must describe the character with sufficient originality. For video games though, the unique expression is the actual visual character created by the artist.

Famous Characters and Copyright Law:

Famous franchise movie characters, like Rambo, Snake Plisskin, and RoboCop, are protected by copyright law because of the copyright in the film and script, but only to the extent of the creative expression by the author. As I said earlier, copyright law does not protect stock characters. Consequently, any use of a gun-toting cyborg won’t be considered copyright infringement of RoboCop until that cyborg looks and acts like RoboCop.

Also, names alone do not have copyright protection. So just mentioning the name of a character won’t be copyright infringement without more.

The creators of some video games use stock characters and scenery that resemble famous movie franchises. This alone likely doesn’t infringe the copyright of someone else’s work if the game’s character art and scenery are original creations developed by the game company.

Do they bring to mind other notable characters in pop culture because of the context? Totally! But copyright law isn't concerned about that here. That's the area of trademark law, and there may certainly be trademark law issues going on there, as well as rights of publicity.

R2-D2:

So how about using a picture of a robot that looks very similar to R2-D2? Like I said earlier, the idea of robots is not protected. But the expression of a robot with three legs, half-sphere for a head, cylindrical, with blue and white ornamentation? Definitely protected - it's Lucas's expression of a robot.

The other thing about Lucasfilm though, is that they have many of their works trademarked as well. Trademarks are source indicators and trademark law is concerned with likelihood of confusion. So even making a robot that brings to mind R2-D2 could be trademark infringement. Lucasfilm also vigilantly polices its trademarks and copyrights, so I recommend steering clear of that territory.

The Take Away:

Characters can be protected by several theories of law, including copyright law, trademark law, and rights of publicity.

You can’t stop someone from suing you (even if you’re right), and using a famous character may not be worth the risk of a lawsuit, so think about getting a license or using your own original character before attempting to use a famous character.

- Bryan and James

Note: this Q&A was modified to remove the name of the video game referenced in the original question.

Read "Copyright in Characters: What Can I Use? Part II"

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.

Video Painting and Copyright

Video painting is an intriguing art form that utilizes technology, photography, video, and performance art. I have always been a fan of works like these due to their transient nature and surrealist elements. Beyond the shear beauty that comes out of it, the copyright implications are also fascinating. On the one hand there is the copyright in the performance art itself as it is being recorded, but there are also the rights to the pictures, videos, accompanying music, art and design elements, and possibly the code written for the software. Just another good reason to make sure you know who owns what, and which elements you may need to license.

Check out this excellent recent installation by SWEATSHOPPE:

From the creators of the work:

"Video painting is a technology the duo developed that allows them to create the illusion that they are painting videos onto walls with electronic paint rollers they built. It works through custom software that they wrote that tracks the position of the paint rollers and projects video wherever they choose to paint, allowing them to explore the relationship between video, mark making and architecture and create live video collages in real time."