[author: Joseph Tulloch, Law Clerk]

In March, the 9th Circuit Court of Appeals rejected a copyright lawsuit that alleged Pixar’s 2015 film “Inside Out” was based on Denise Daniels, a child development expert, who had pitched her idea to Walt Disney Co.

Mrs. Daniels filed suit in 2017, alleging that Disney had breached an implied-in-fact contract and that Pixar had copied her idea for a T.V. show called “The Moodsters.” Daniels had created and assembled a team to produce a pilot for the show, in which color-coded characters represented each of five emotions: happiness, sadness, anger, love, and fear, and were intended to help children explore their feelings. Daniels alleged that she had pitched the idea to various executives at Disney from 2005 to 2009 and that the film “Inside Out,” which began development in 2010, also featured characters that represented five similar color-coded emotions: joy, sadness, anger, fear, and disgust.

In its ruling, the 9th Circuit’s three-judge panel affirmed the lower courts ruling by dismissing the complaint, basing its decision on the “towle test” laid out in the 2015 case of D.C. Comics v. Towle. Judge M. Margaret McKeown wrote for a unanimous panel stating, “Although a character that has appeared in multiple productions or iterations ‘need not have a consistent appearance,’ it ‘must display consistent, identifiable character traits and attributes; such that it is recognizable whenever it appears… while distinctive, consistently drawn film characters ranging from James Bond to Godzilla to the Batmobile have been held copyrightable, Daniels’ anthropomorphized emotions do not meet that standard.”

Now, Daniels is requesting that the U.S. Supreme Court revive her lawsuit for copyright infringement against Walt Disney Co. for Pixar’s use of her characters in the award-winning film “Inside Out.” In her petition for certiorari filed in early August, Daniels warns that circuit courts have created “chaos” and “confusion” over protection for fictional characters. She continued in her petition by contesting that “the justices needed to clarify when characters themselves are protected by copyrights because lower courts had adopted inconsistent tests divorced from the foundational principles of copyright law.”

Fictional characters can, under U.S. law, be protected separately from their underlying works. Copyright law prevents the unauthorized copying of authored works, but anyone may copy the ideas contained within a work. This is based on the legal theory of derivative copyrights. To obtain this type of protection, a creator must prove that the characters are sufficiently unique and distinctive to merit this protection. James D. Weinberger said, “The Copyright Act does not provide for protection for characters per se – only for original works of authorship.” With that said, courts have extended copyright protection to notable characters appearing in functional work.

In this case, Denise Daniels did not do enough to make her characters sufficiently unique. As Judge McKeown wrote her in opinion, “Daniels cannot copyright the idea of colors or emotions, nor can she copyright the idea of using colors to represent emotions where these ideas are embodied in a character without sufficient delineation and distinctiveness.”

While it is uncertain if the Supreme Court will decide to hear the case, it would seem that representing different generic emotions with different generic colors is not enough to raise copyright protections under federal law, specifically 17 U.S.C. § 106 of the Copyright Act of 1976.