The protection of fictional characters: A study on how fictional characters can be protected under copyright and trade mark law

Abstract: As the entertainment industry continues to grow and fictional characters holding enormous value, this paper seeks to explain how the characters can be protected within the EU through copyright or the use of trade marks, and what the limitations to such protection might be. The paper is using a legal analytical method and looks at both the legislation and the case-law within the union, but also at doctrine and other jurisdictions to aid the interpretation where case-law is absent. The paper finds that characters may be protected by both copyright and as trade marks, albeit with some limitations for both protections. The primary limitation for copyright is parodic use which allows unauthorised use of the characters if the new work shows noticeable differences from the original work and constitute an expression of humour or mockery. The trade mark protection is similarly limited as it may only hinder trade mark use. As characters are considered to be of a descriptive nature when used in relation to works, the trade mark protection is unable to prevent or prohibit such use as the character has not been used as a trade mark. The situation is made more convoluted by problems that arise with overlapping intellectual property rights as the courts do not always apply the same rules in determining which framework to use. There is therefore a risk of disturbing the balance of the copyright bargain as the purpose of the protection is to enrich the public domain while also allowing authors a fair compensation. For the sake of legal certainty and to remove the friction that could otherwise arise as more characters enter the public domain, the area needs further harmonisation to guarantee the proper functioning of the internal market and rights of the public.