71 Am. U. L. Rev. 1145 (2022).

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Abstract

Copyright law for fictional characters has been inconsistent since the first character copyright case in 1930. The lack of explicit statutory protection for fictional characters has led circuit courts to develop varying tests to determine character copyrightability. Several of these tests stray from the well-established constitutional principle that copyright protection is available for any work that exhibits a minimal level of originality and creativity. This Comment analyzes three different character copyright tests: (1) the “distinctly delineated” test, (2) the Towle test, and (3) the “stock character” test and argues that the “stock character” test is the appropriate test for courts to apply when evaluating character copyrightability. In light of this conclusion, this Comment further analyzes the recent Ninth Circuit case Daniels v. Walt Disney and concludes that Daniels’s characters, the Moodsters, are copyrightable under the appropriate “stock character” test.

* Junior Staff Member, American University Law Review, Volume 71; J.D. Candidate, May 2023, American University Washington College of Law; B.S. Mechanical Engineering, University of Virginia. Thank you to the Law Review staff for their thoughtful feedback, especially my Comment editor, Ryan Kaiser, and my final editor, Kelly Welsh. And thank you to my family and friends for their continuous support and encouragement.