Nexus: Infopaq

Copyright protection of fictional characters: is it possible? how far can it go?

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The IPKat's favourite fictional character

Last year, I was fortunate enough to be invited by Associate Professor Yann Basire (Director-General of CEIPI) to participate in a great (and cool!) conference he organized in Strasbourg on Pop Culture and IP. The topic I was asked to discuss was trade mark protection of fictional characters, and the contribution will be published in 2020 as part of a collection edited by Yann and entitled Propriété Intellectuelle et Pop Culture (LexisNexis, coll. IRPI).

But what about copyright protection of fictional characters: is it possible? how far could it go?

Copyright protection is available to any work in a Berne and, now, EU sense. While no particular issues arise in relation to the literary, artistic or dramatic works that feature certain characters, in that they are regarded as ‘traditional’ copyright subject matter, whether copyright also vests in fictional characters as such has occasionally proved controversial.

Difficulties are linked to the fact that, first, one might wonder whether a character is to be considered a ‘work’ in a copyright sense and, secondly, assuming that it is, what type of work a character is. While the latter appears to be less fundamental question than the former, it might still be a problematic one to answer in those European jurisdictions that envisage an exhaustive list of protectable works.

A ‘work’ that is sufficiently ‘original’

There is no statutory definition of ‘work’ in EU copyright directives, including the InfoSoc Directive.

However, recently the Court of Justice of the European Union (CJEU) tackled the notion of ‘work’ in its judgment in Levola Hengelo [Katposts here] (the CJEU confirmed its findings in that case in its more recent decision in Cofemel [Katposts here]).

Noting that the InfoSoc Directive provides both a set of exclusive rights relating, in the case of authors, to their ‘works’ and relevant exceptions and limitations to such rights but makes no express reference to the laws of individual Member States for the purpose of determining the meaning and scope of the concept of a ‘work’, such concept is to be considered an autonomous concept of EU law. As such, it is to be given a uniform application throughout the EU, in compliance with the principle of autonomy of EU law.

As I also discuss here, this conclusion on the side of the CJEU is not surprising, also considering its frequent use in copyright case law: the CJEU has indeed often employed this interpretative standard in its copyright case law, with the practical effect of strengthening harmonization of copyright laws across the EU.

The CJEU considered that two cumulative conditions must be satisfied for subject matter to be classified as a ‘work’ within the meaning of the InfoSoc Directive. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation, in accordance with the decision in Infopaq and subsequent case law. Second, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of that directive. Recalling both the wording of Article 2(1) of the Berne Convention and the idea/expression dichotomy in Articles 2 of the WIPO Copyright Treaty and 9(2) of the TRIPs Agreement, the Court concluded that

for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

In the case of a fictional character, the definition of ‘work’ may be satisfied when the character at issue appears in a single work and its features are identifiable in accordance with the CJEU criteria. The assessment, however, might be potentially more complex when the character is one with a longstanding history and which has appeared and changed to some extent over time. Would it be possible to identify with sufficient precision and objectivity the protectable expression which renders such character a ‘work’?

Under US law, the answer appears to be in the affirmative, insofar as certain requirements are satisfied. In 2015, the U.S. Court of Appeals for the Ninth Circuit was called to decide whether defendant Mark Towle had infringed DC Comics’ exclusive rights under a copyright when he built and sold replicas of the Batmobile, as it appeared in the 1966 television show Batman and the 1989 film BATMAN. “Holy copyright law, Batman!”, noted Circuit Judge Ikuta at the beginning of his opinion.

The court considered whether the Batmobile itself could a protected character under US law by adopting a 3-part test:

the character must generally have physical as well as conceptual qualities;
the character must be sufficiently delineated to be recognizable as the same character whenever it appears (this requires the presence of identifiable character traits and attributes, but the character does not need to have a consistent appearance);
the character must be especially distinctive and contain some unique elements of expression, meaning that it cannot be a stock character such as a magician in standard magician garb. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard.

Applying this test, to the case at issue, the court concluded that the Batmobile would be protected by copyright and that the defendant had infringed it.

It appears that, even if this test is only directly applicable under US law, it could be useful also in a European context. We could indeed consider that fulfilment of all requirements of the test is substantially what is required under EU law to identify a ‘work’ that is sufficiently ‘original’. Indeed, whilst the first and third step seem to relate to the originality of the character and, thus, what makes it its ‘author’s own intellectual creation’, the result of their ‘free and creative choices’ and ultimately what carries their ‘personal touch’, the second step entails the consideration of whether such character is “identifiable with sufficient precision and objectivity” and is, thus, a ‘work’ in the sense clarified in Levola Hengelo.

A work of the ‘right kind’

In European jurisdictions that envisage a closed list of protectable subject matter, an additional difficulty surrounding copyright protection of fictional characters relates to their classification: what types of works are they? A question of this kind, whose compatibility with EU law (or, rather: CJEU case law) is highly questionable, remains formally a fundamental one to answer, in that impossibility to determine what category a work belongs to (usually) leads to a finding that copyright protection is not possible.

So, under UK law (a jurisdiction in which copyright protection is only available to a limited number of works), leading commentaries explain that a ‘work’ is "a thing which satisfies the statutory description of a literary, dramatic, etc. work."

Such ‘thing’ must be, first, a production in the Berne sense and, second, fall within one of the categories provided by the Copyright, Designs and Patents Act 1988 (CDPA). Categorization has implications not just for determining whether a certain work may be actually protected by copyright under UK law, but also what rights attach to such work. So, for instance, section 21(1) CDPA excludes the right of adaptation for artistic works, while providing expressly for it in relation to literary, dramatic and musical works. Similarly, section 17(3) includes conversion of a work into a three-dimensional form within the scope of the right of reproduction only for artistic works, not also literary works. In addition, differences between the various categories subsist also in relation to the topic of infringement. While copyright in a literary, dramatic, musical or artistic work may be infringed without copying the medium on which the work was recorded by the author or published by the publisher, copyright in sound recordings, broadcasts, published editions and films may only be infringed by reproducing the medium produced by the author.

In UK copyright case law, there have been a few instances in which works have been denied copyright protection due to the very impossibility of placing such works within one of the categories provided by the CDPA. Examples include the assembly of a scene (the scene was that which would be photographed for the cover of Oasis’s Be Here Now album) and the Stormtrooper Helmet from the Star Wars films. Until recently, uncertainties have also surrounded the protectability of TV formats by means of copyright, due to uncertain categorization thereof [Katpost here].

The same difficulties of categorization seem likely to subsist also in relation to fictional characters: are they a literary work? a dramatic work? an artistic work?

All this said, as mentioned, it is highly questionable whether an approach of this kind is (still) allowed under EU law. Most recently, in Cofemel, the CJEU considered that the notion of work solely presupposes the fulfilment of two cumulative requirements: first, it implies the existence of an original object, in the sense that said object is the intellectual creation of its author; second, the notion of work is reserved to those elements which are the expression of such creation. When an object is a ‘work’ in this sense, “it shall be eligible, in this respect, for copyright protection, in compliance with Directive 2001/29”.

All this rather clearly suggests that no other criteria can be imposed to determine copyright subsistence, not even the requirement that the work at issue is one of the right kind. This conclusion is also in line with certain enlightened UK case law, which has noted how – in light of a number of CJEU rulings – it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) CDPA and defined elsewhere in that Act. Nevertheless, it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention.

Which and how many copyrights?

Copyright protection of a character (if available) is in principle limited in time; in Europe, it will last for the life of the author and seventy years after their death. This means that in principle, upon falling in the public domain, it will become possible to use a character without the need for a licence to, eg, create a new adaptation of the story featuring said character.

So, if we take the example of Sleeping Beauty in the version by Charles Perrault (as also subsequently collected and printed by the Brothers Grimm), both the story and the characters are no longer protected by copyright. However, subsequent adaptations of the public domain stories would warrant their own copyright protection, insofar as they are original.

The same is true with regard to the relevant characters: so, if we apply the criteria mentioned above, this means that, eg, Disney’s version of Sleeping Beauty as a character with a certain appearance and personality would enjoy its self-standing copyright protection and the same would be true of Dreamworks’s own version, which also has an original appearance and personality. Insofar as no original features of a copyright-protected character are reproduced, it remains possible to use a third-party character to create, eg, new adaptations of well-known story.

Conclusion

Different IP rights are available for the protection of fictional characters. As far as copyright is concerned, doubts may subsist regarding the classification of characters as self-standing works which enjoy copyright protection separate from the works in which they are contained. In addition, copyright protection is limited in time and encompasses the external appearance of such characters.

Other types of IP rights, including trade mark protection, might thus present a certain attractiveness, due to the fact that (in the case of trade marks) protection could be virtually perpetual and relate to elements that are not necessarily connected with the external appearance of the character (eg, their name).

However, it is doubtful whether trade mark registration could be effectively pursued in each and every instance, particularly on consideration of the applicability of the absolute grounds for refusal or invalidity concerning distinctiveness, public policy and morality and aesthetic functionality. In addition, the scope of protection – where available – would go only as far as allowing the trade mark owner to repress third-party uses of identical or similar signs, insofar as such uses are uses in a trade mark sense and affect the functions of the registered trade mark (the latter is true also in double identity scenarios, as the CJEU considered in Arsenal).

All this suggests that the most effective way to protect a fictional character through IP is a comprehensive strategy that relies on different rights allowing the pursuit of different objectives of exclusivity, but is also conscious of the limitations that are inherent to each and every right.

The Cofemel decision well beyond the ‘simple’ issue of designs and copyright

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G-Star Elwood,
a style of jeans that G-Star claims
Cofemel to have copied
in the background Portuguese proceedings

As announced on The IPKat, last week the Court of Justice of the European Union (CJEU) issued its much awaited judgment in Cofemel, C-683/17 [not yet available in English]. It ruled that, as far as designs are concerned, no other requirement is mandated for copyright protection to arise under the InfoSoc Directive, but the sufficient originality of the design at issue.

Earlier case law

The ruling is not surprising, considering earlier CJEU case law, most notably the decision in Flos, C-168/09. This was a reference from Italy asking about the compatibility with EU law of certain Italian provisions that the Court of First Instance of Milan had deemed potentially incompatible with the principle of cumulation envisaged under EU law. The Italian approach to copyright protection of designs has been traditionally rooted within the principle of scindibilità (separability). The CJEU held that EU law prohibits Member States from denying copyright protection to designs that meet the requirements for copyright protection – including designs other than registered ones (subject to Article 17 of the Design Directive) – and suggested that Member States cannot set any particular requirements as to how protection is to be secured.

The implication of all this appeared to be that – if a design is eligible for protection under the InfoSoc Directive and is, as such, original in the sense clarified by the CJEU – then Member States cannot deny such protection.

Such a reading of the Flos case is the one that, long before the Opinion of Advocate General (AG) Szpunar in Cofemel [Katpost here], AG Jääskinen had proposed in Donner, C-5/11 (at [31]):

[T]he judgment in Flos indicates that the items here in issue, although unprotected under Italian copyright law during the relevant period, were entitled to protection under EU copyright law.

The Flos decision has given rise to contrasting interpretations, and in the UK – for instance – it culminated in the repeal of section 52 of the Copyright, Designs and Patents Act 1988.

In all this it is worth noting that the ‘seeds’ of both Flos and Cofemel were sown long before these cases were decided.

As early as Infopaq, C-5/08, in fact, the CJEU removed the possibility of envisaging different standards of protection for different subject matter. If a work falls within the scope of application of the InfoSoc Directive, then protection only arises upon satisfying the requirement that it is its ‘author’s own intellectual creation’, that is the result of ‘free and creative choices’ (FAPL, C-403/08 and C-429/08) and something that carries the ‘personal touch’ of the author (Painer, C-145/10). As recently summarized by the Court in Funke Medien, C-469/17 (at [23]),

[I]t is for the national court to ascertain whether […] the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, the originality of which arises from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation (see, to that effect, judgment of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 45 to 47), whereas the mere intellectual effort and skill [is] not relevant in that regard (see, by analogy, judgment of 1 March 2012, Football Dataco and Others, C‑604/10, EU:C:2012:115, paragraph 33).

The Cofemel decision

In its Cofemel judgment, the CJEU proceeded along the very lines set by these earlier rulings. It may be worth noting that the Judge Rapporteur was Mr Malenovský, ie the same judge who – besides acting as rapporteur in over 50% of the copyright referrals today, was also the rapporteur in Infopaq.

The key question referred by the Portuguese Supreme Court was whether EU law (specifically: Article 2(a) of the InfoSoc Directive) prevents Member States from granting copyright protection to designs subject to requirements other than originality, eg, a high level of artistic value, as per the traditional Italian scindibilità and German Stufentheorie).

In order to answer, the CJEU moved from the notion of ‘work’ in Article 2(a), and recalled that this – like all those concepts that do not refer to the laws of individual EU Member States – is an ‘autonomous’ notion of EU law, which requires uniform interpretation across the EU. The Court referred to both Infopaq and the recent judgment in Levola Hengelo, C-310/17 [Katpost here] (at [33] and [35]-[37]) to note that the notion of work presupposes the fulfilment of two cumulative requirements:

It implies the existence of an original object, in the sense that said object is the intellectual creation of its author in the sense clarified above. This means that the originality criterion “is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom” (Football Dataco, C-604/10, at [39]);
The notion of work is reserved to those elements which are the expression of such creation. As the CJEU stated in Levola Hengelo, this necessarily implies that the subject matter “must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form” (at [40]). There should be “no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter” (at [41]).

"Mirror, mirror on the wall,
who's the fairest of them all?":
a question that no longer needs to be asked
post-Cofemel ...

Also considering a fundamental rights angle (Article 17(2) of the EU Charter of Fundamental Rights), the CJEU noted that “it does not follow that said objects or categories of objects shall all benefit from an identical protection” (at [38], my own translation from Italian). So, in this sense, in line with the Berne Convention (which does not preclude rights cumulation), different ‘objects’ might fall under the InfoSoc Directive, the Design Directive, and/or the Community Design Regulation, which pursue fundamentally different objectives.

All this said, however, if a design falls within the scope of the InfoSoc Directive, then the only requirement for copyright protection under this piece of legislation is that the design is a ‘work’ fulfilling requirements 1. and 2. above.

The Court also added that, if a national law were to require some sort of ‘aesthetic’ value for a design to be eligible for copyright protection, this would contradict the requirement of objectivity as mandated under EU law.

Implications

The Cofemel judgment is yet another landmark ruling of the CJEU with far-reaching consequences, both for designs and other ‘objects’ protected by copyright.

Designs

As far as designs are concerned, the judgment brings to its natural consequences the evolution already signalled by earlier case law: copyright protection simply arises upon fulfilment of the originality requirement. Nothing further is required.

Whilst this ‘throws out of the window’ those national approaches that have traditionally made copyright protection dependent on an artistic, aesthetic, etc value, it also makes it clear that the assessment of originality is to be a thorough one. In this sense, national courts will need to identify what makes a design an original work, also bearing in mind the CJEU’s considerations re technical features.

For those countries with an extra set of criteria that need to be fulfilled for a design to be eligible for copyright protection, the judgment clearly mandates a change of approach.

... as is the question of artistic intention
(and value!)

Other works

Moving on to other copyright subject matter, the implications of Cofemel are equally profound.

First, the judgment suggests that only the objective criteria indicated therein need to be satisfied: hence, there is no (longer) room for any requirement of artistic value or intent, as is instead still the case in certain jurisdictions. So, if we take the UK, the category of works of artistic craftmanship needs to be seriously re-considered. Furthermore, approaches like the one adopted by the UK Supreme Court in Lucasfilm (the Stormtrooper Helmet case) in relation to artistic works appear even more questionable than what could have possibly been the case so far.

Second, in line with earlier case law up till the Levola Hengelo ruling, Cofemel indicates that exhaustive lists of protectable subject matter (as is the case of, eg, the UK) are really incompatible with EU law. Protection only arises when there is a work in the sense clarified by the Court: no other requirements are needed. And, in line with the point above, copyright protection cannot arise at different conditions depending on the ‘category’ the object at issue belongs to.

Finally, as a follow up to Levola Hengelo, the Cofemel decision also questions the fixation requirement. It is true that the Berne Convention leaves it to individual signatory countries to decide on their own approach to fixation, but is that true also for EU Member States? It appears that the answer is in the negative: what EU law or, rather, the CJEU approach to EU copyright, requires is a harmonized approach to fixation across the EU. This means that there cannot be different choices are regards and understandings of fixation: the approach should be uniform across the EU and be the one mandated in Levola Hengelo and Cofemel.

[This contribution was first published on the Bird & Bird's DesignWrites blog: follow it for updates on relevant developments in the design and copyright world!]

Never Too late: if you missed The IPKat last week

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Enjoy this new edition of Never Too Late, summarising news and opinions provided by our Kats on the latest developments in IP law at the judicial, administrative, national, and European levels.

Trade marks

Nedim Malovic discusses the difficulties for relevant authorities in the assessment of trade mark applications made by social media influencers and musicians aimed at creating a bridge with contemporary trends within the pop and cultural scenes.

Tian Lu reports that Chanel Co., Ltd. lost a trade mark infringement case regarding its ‘Double C’ logo in China.

Katfriend Thomas Key reports on the recent decision of the US Supreme Court in Iancu v. Brunetti regarding morality and freedom of expression.

Alex Woolgar reports that Red Bull sues rival F1 sponsor Rich Energy for trade mark infringement .

Let's get ready for Never Too Late

Copyright

Neil Wilkof discusses issues relating to the rights of immigrant minors in their drawings in connection with their detention along the U.S./Mexico border.

Katfriend Akanshha Agrawal reports on the first dynamic website blocking order issued by the Delhi High Court.

Eleonora Rosati takes a look at the evolution of the Court of Justice of the European Union's case law 10 years after the Infopaq decision.

Katfriends Bhavik Shukla and Iravati Singh discuss disputes involving creations by animals and the attribution of copyright

Thomas Key writes YouTube shifts the burden: requires manual copyright claimants to timestamp the allegedly infringing material; simplifies the rectification process.

InternKat Antonella Gentile reports that the Rome Court of First Instance (Tribunale di Roma) has issued what might be one of the first, if not the first decision (RG 24711-2012, decision 14757/2019) in Europe, which has found a hosting provider directly liable for content uploaded by users of the platform.

Patents

Rose Hughes writes about another patent dispute concerning non-invasive prenatal blood testing (NIPT).

Still Rose discusses decision T-0439/17 (published online 1 July 2019), in which the Board of Appeal of the EPO considered the circumstances when a third party may intervene in an opposition.

Rose also considers the recent decision in D 11/18. In D 11/18, a 2018 European Qualifying Exam candidate successfully appealed the decision of the Examination Board to fail his Paper B script (D 11/18). The Disciplinary Board found a serious and obvious error in the Examiner's Report and remitted the script back to the Examination Board for re-marking.

Tristan Sherliker discusses the English Court of Appeal's judgment in ZyXEL v TQ Delta [2019] EWCA Civ 1277.

Designs

Katfriend Ewan Grist analyses English design decisions over the past 12 years finding that there is quite a lot for designers and design owners to feel content about.

Book Reviews

Hayleigh Bosher reviews the Research Handbook on Intellectual Property and Creative Industries, A History of IP in 50 Objects and The protection of non-traditional mark.

Eleonora Rosati reviews Copyright and fan productivity in China.

Mathilde Pavis reviews Eleonora's Copyright and the Court of Justice of the European Union.

Event reports

Chijioke Okorie reports South African IP researchers’ (AIPLITL) conference – The IP and IT Law Innovation Interface.

Irene Calboli (Texas A&M University and Université de Genève) and Jacques de Werra (Université de Genève) report on the second IP Researchers Europe Conference in Geneva that they have recently organized together with WIPO and WTO.

And...

In Why is there less innovation? Blame old geezers like me Neil Wilkof discusses the crisis of productivity and innovation.

Eleonora Rosati reports that Mr Justice Arnold will become Lord Justice Arnold.

Hayleigh Bosher reports that the UK Intelletual Property Office is looking for people with first-hand experience and/or a working knowledge of using the IP enforcement framework to protect their intellectual property to join their working group.

Rose Hughes publishes the serve and volley of tennis innovation.

Ieva Giedrimaite discusses the UK’s Information Commissioner’s Office new guidance on the use of cookies and similar technologies for storing information, and accessing information stored, on a user's equipment, such as a computer or mobile device.

Africa Correspondent Chijioke Okorie reports that UN Economic Commission for Africa launches the Assessing Regional Integration in Africa (ARIA) IX.

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Never Too Late 224 [Week ending 2 Jun] Following CJEU Syed ruling, Swedish Supreme Court establishes criminal liability through warehouse storage of copyright infringing goods | Opposition proceedings before the EUIPO: a lesson from the General Court | Sprint Electric v Potamianos: High Court finds an implied copyright assignment based on equitable title | Henry Carr J refuses Abbott's mitral valve preliminary injunction | Not quite "One in a Million", says Court of Appeal | Sir Hugh Laddie and the Lectures: A story about a new publication | A publishing opportunity for anyone with an interest in the wine industry (and who doesn't?) | Wine, beer and chocolate-all with a Southern flavor | In memoriam Grumpy Cat: IP and beyond

Nexus

Copyright protection of fictional characters: is it possible? how far can it go?

The Cofemel decision well beyond the ‘simple’ issue of designs and copyright

Never Too late: if you missed The IPKat last week

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