What is real
is not external form.



CONSTANTIN BRANCUSI

Do graphic characters have a life of their own?

07.08.2020


Bugs Bunny, Mickey Mouse, James Bond and so on are represented either graphically or via more standard fiction forms i.e., in novels or films. The differentiating element between these two types of character is manifested by their respective manner of representation: if presented as a drawing, it is “graphic character”; if the character emerges from a “portrait of words”, it is “fictional”.

It should be noted that when considering graphic characters in comparison with those in any other category of visual art, there is a key difference: non-graphic characters are able to have a “life of their own”. In other words, the character enjoys legal protection in a variety of setting/forms, positions and different characterisations, namely in different ways than that originally put forward by the creator.

Nowadays, there are countless ways in which graphic characters are used to help market different ranges of products and services, for example: licensing programs for children’s toys; via cartoons; and, even on clothes for both children and adults. However, there is a problem. Specifically, it is very difficult to obtain profits from these graphic characters via the protections of intellectual property associated with them. As the value of these characters has increased over time, the right to intellectual property and unfair competition has likewise increased, thereby necessitating that these fictional characters are granted legal protection akin to normative “fictional” characters.

The reality is that the legal protection of graphic characters is much more regulated than one might imagine. However, the status of legal protection of fictional characters has been met with varying viewpoints in the courts. In this regard, the protection of these characters takes three forms: copyright; trademarks; and, the law of unfair competition. We will analyse what it means to protect a fictional character from the point of view of copyright whereby the expression of the copyright of a character represents not only the physical characteristics of a character, but also their specific name and idiosyncratic personality traits.

This topic is frequently debated since it raises the issue of the degree of uncertainty if there is a pertinent similarity in the physical description of another character, but no similarity in the personality of the character. Namely, there may be a situation in which a cartoon character can be a source of “inspiration” for another character in a second work, not only by visual resemblance, but also via all the attributes of the character. There have been cases where criminals have admitted to copying the names and appearances of certain characters, but due to the fact that these characters were placed in very different situations and scenarios, they won the case anyhow.

In conclusion, if you are the creator of a graphic character, you must ensure it lies within the relevant sphere of legal protection: specifically, you must take all necessary steps to protect it and thus its potential for generating income.

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