Superheroes of Copyright: When Do Fictional Characters Enjoy Copyright Protection?

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Several recent cases have highlighted the interesting issue of whether and when fictional characters – as distinct from the works they inhabit – are subject to copyright protection.  Over the years, courts have developed two main tests for determining whether characters are worthy of copyright protection.  First, as Judge Hand pointed out in the 1930 case Nichols v. Universal, stock characters are free for anyone to use, but characters that are sufficiently delineated are protected from imitation: “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinctly.”  45 F.2d 119, 121 (2d Cir. 1930).  On the other hand, some courts have concluded that characters are only copyrightable if they “constitute[] the story being told,” as opposed to “only a chessman in the game of telling the story.”  Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945, 950 (9th Cir. 1954).

There is some uncertainty in more recent case law as to which of the two tests controls, with some courts applying both tests and some concluding that satisfaction of either test is sufficient for a character to enjoy copyright protection.  In general, it appears that modern courts have found the “sufficiently delineated” test more helpful in answering the copyrightability question.

Consensus also seems to support a distinction between purely literary characters and those depicted graphically or visually, such as in comic books, television, or film.  In the latter case, there is often pictorial as well as textual expression involved, and there is greater opportunity to delineate details of the character’s appearance that may be left to the imagination in a prose depiction.

Faster than a Speeding Bullet

There appears to be little dispute that the character of Superman is entitled to copyright protection.  The Second Circuit held as much in 1940.  Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940).  Yet more than seventy years later, copyright in Superman is still a contentious issue, involving ongoing court battles between DC Comics Inc. (successor to Detective Comics) and the heirs of Superman’s creators.  The Ninth Circuit held in January that DC Comics owns full rights to the character, based on its interpretation of an earlier settlement between the parties.  Notably, neither party to this protracted dispute took the position that the lucrative Superman character was actually not protectable by copyright.

Elementary, My Dear Watson

A new case filed last month in the Eastern District of Illinois focuses on copyright protection for Sherlock Holmes and his fellow characters, such as Dr. Watson and Professor Moriarty.  The plaintiff, Leslie Klinger, is a Sherlock Holmes scholar who seeks to publish a book of stories by contemporary authors placing Holmes, Watson, and other characters created by Arthur Conan Doyle in new mysterious scenarios.  The defendant, Conan Doyle Estate, Ltd., claims to own the copyright in these characters and has demanded that Klinger or his publisher pay a license fee.  Klinger does not argue that Sherlock Holmes is “indistinctly” drawn and should fail the test for copyrightability.  Rather, he argues that the character has fallen into the public domain in the United States, since all but ten of the sixty Conan Doyle stories and novels in which he appears were published before 1923.  (All of Conan Doyle’s Holmes works are in the public domain in the United Kingdom and Canada.)  An exhibit to Klinger’s complaint contains a detailed list of character traits – such as Holmes’s “bohemian nature,” drug use, aptitude for disguise, and physical appearance – that all allegedly appear in the public domain stories.  Thus, Klinger argues, Sherlock Holmes was “sufficiently delineated” before 1923 and has entered the public domain as a character, notwithstanding the fact that Conan Doyle continued to create derivative works based on that character that remain subject to copyright protection.

To the Batmobile!

Also last month, the Central District of California issued a decision holding that Batman’s vehicle, the Batmobile, is a copyrightable character.  In that case, DC Comics, which also owns rights to the Batman comic book series, sued Mark Towle, owner of Gotham Garage, who was in the business of building and selling cars designed to look like the Batmobile.  Defendant argued that the Batmobile was “just a car,” but the court disagreed, finding that it was “sufficiently delineated” to merit copyright protection:  “The Batmobile, in its various incarnations, is a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime.  Even though the Batmobile is not identical in every comic book, film, or television show, it is still widely recognizable because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet black.”  Moreover, it has a personality: “Other than its physical features, the Batmobile is depicted as being swift, cunning, strong, and elusive. . . . The comic books portray the Batmobile as a superhero.”

The court also found, in the alternative, that the Batmobile is entitled to copyright protection as a “pictorial, graphic, [or] sculptural work” and is not excluded from protection as a useful article.  In the comic books, of course, the Batmobile is a two-dimensional picture, not a functioning vehicle.  It was created in three-dimensional form to be filmed in television shows and movies, but the court found that even the 3-D incarnations are “entirely distinguishable from an ordinary automobile.”  Although it “happens to look like a car,” the “so-called functional elements associated with it . . . incorporate[] fantasy elements that do not appear on real-world vehicles” and “are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies.  Thus, the Batmobile’s usefulness is a construct.”

Although defendant has a laches argument that survived summary judgment, it appears likely that comic book fans hoping to drive around in their very own Batmobiles may no longer be able to purchase them from Gotham Garage.  But they can still set their sights on owning the original Batmobile created for the 1960s television series, which sold at auction in January for $4.6 million.  Holy collector’s item, Batman!

Photos courtesy of HystericalMark, Charles Fettinger, Dougal McGuire and Digital_Third_Eye


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.