Everyone is familiar with the graphic images of the Seven Dwarfs, Bugs Bunny, SpongeBob Squarepants and Mickey Mouse. These characters have become a definitive part of our culture, and are easily recognizable on the television screen or in picture books. A graphic character is the drawing of a fictional entity that does not resemble an actual person, place or thing. Graphic characters are offered legal protection that differs from most other types of mediums.
Typically, graphic characters are created for commercial purposes, such as to advertise a product or service, or to appear in a book, movie or on television. As such, they provide nearly infinitesimal benefits to the creator, and can be protected under a wide variety of settings and characterizations from the original creation.
For example, we know who Mickey Mouse is, but we’ve seen him do a great many things. In one picture, he might be wearing trousers and a flannel shirt, while in other pictures he might be represented with only the black pants as in his original creation. The graphic character of Mickey Mouse is protected regardless of where he is shown or what he is wearing.
Mickey Mouse, as well as other graphic characters used for commercial purposes, are protected as “intellectual property”. That means that their creator conceived and created the image of that character, and therefore owns it.
There are two different ways to protect a graphic character: copyright registration and trademark registration. Both have advantages and disadvantages, but the scope of protection is decidedly different.
Obtaining copyright protection of a graphic character is effective but short-lived. Not only does copyright protection consider the physical aspects of the graphic character in question, but also poses, attitudes, characterizations and settings. For example, I could take Daffy Duck from Disney Productions and convert him into a comic book of my own creation, eliminating his lisp and his mannerisms. In this case, is copyright protection effective enough to protect Daffy Duck from my use?
Trademark protection might be more effective because it will encompass “unfair competition” as well as the use of the physical character. Not only will my graphic character be protected, but also future merchandise and products featuring that character. However, trademark protection is considerably more expensive than copyright protection, and one must weight the pros and cons as well as the direction the graphic character will take.
In the past, courts have ruled mostly in favor of the creators of the characters rather than those who infringe upon copyright and trademark laws. The rulings depend upon the extent of the use of the graphic character, the profits generated by that use, and the settings and characteristics also lifted.
It is best to consult with an attorney who is experienced in the protection of graphic characters before committing to one avenue or the other.