Emory Law Journal


Caitlin E. Oh


Enormous amounts of new content are posted on social media every day. Ordinarily, if a work is original and created by the author, the work is automatically protected under copyright without the need for registration. However, in recent years, copyright protection has become difficult to obtain for one type of expression: fictional characters.

Today, characters hold immense cultural significance. For some, characters provide an escape from reality, entertainment, and, in some cases, a blueprint to which one can aspire. For entertainment studios, characters hold immense economic value. If a character is popular—holding cultural significance—a studio might create a prequel or spin-off television series about the character to satiate fan bases.

Despite the cultural and economic significance of characters, the only characters which have been granted copyright protection possess long tenures in recognizable entertainment companies, such as James Bond, Godzilla, Superman, and the Batmobile. Sparse copyright protection for characters is a result of a circuit split where three jurisdictions apply divergent standards not based on originality. In 2020, The Moodsters, five anthropomorphic personifications of moods, were denied copyright protection in the Ninth Circuit, which has the highest standard for character copyrightability. This heightened standard ultimately allowed Disney to make billions off its animated film Inside Out. The decision—made in Daniels v. Walt Disney Co.—underscores the repercussions of a heightened standard for character copyrightability, which has allowed courts to grant copyright protection for famous characters alone.

This Comment proposes the following solution to this problem: adopting the Seventh Circuit’s “stock character” test for character copyrightability. To lay the foundation, it explores the disparate standards set by the Second, Seventh, and Ninth Circuits for character copyrightability. Particularly, it delves into the evolution of the doctrine in the Ninth Circuit, which has greatly expanded protection for character copyrights. It then analyzes the Daniels v. Walt Disney Co. decision and its flaws—noting specifically how its rationale raises the already-heightened standard. Finally, it analyzes the constitutional basis for copyright, the policy and economic considerations of copyright, and the Supreme Court’s foundational copyright decision, Feist Publications v. Rural Telephone Service Co.