Distinctly Delineated Fictional Characters That Constitute The Story Being Told: Who Are They And Do They Deserve Independent Copyright Protection?

Part I of this paper discusses the characteristics that make literary characters especially difficult to protect. Part II describes the historical treatment of literary characters and the two main tests used to determine whether they are entitled to independent copyright protection. Part III demonstrates that the two tests currently used are not adequate tools for determining when copyright law protects literary characters. Part IV explores the possibility of using trademark and unfair competition laws to offer partial protection to fictional characters. Part V presents an argument that literary characters do not need independent protection because they are already sufficiently protected by the copyright in the original work when supplemented by the protection offered by trademark and unfair competition laws. Part V also argues that the tests created for determining when fictional characters are protected adds nothing of value that is not already found in the substantial similarity test