I, like many gamers, thoroughly enjoyed the “Kevin Butler, VP” ads Sony ran over the last year or so. Here’s a compilation of some of the best (my favorite is the second):

Click here to watch video.

So I, like many people (including our friends at [a]List) were a bit puzzled by "Kevin" showing up in a Bridgestone commercial. And particularly puzzled by the fact that he appears to be excited about the Wii:

Click here to watch video.

For those of you didn’t watch the clips, "Kevin Butler" isn’t a VP of anything. He isn’t even real. He’s a character that is played by an actor named Jerry Lambert.  So if "Kevin Butler" is a fictional character, who controls whether Kevin appears in ads for Sony, Bridgestone, or anyone else?

The short answer either the owner of the character, if the character is properly protected at law, or no one.

Figuring out who owns a fictional character can be difficult because the general rule of "the creator is the owner" doesn't always apply to fictional characters, especially those created for advertising purposes.  Advertising agencies often create on a "work for hire" basis, meaning that the entity that created the character may or may not own the character. 

Once you figure out who owns the character, you have to figure out whether the character is protectable.  Fictional characters are protected under copyright law only if they are properly the subject of copyright law.  Most characters are ideas, and you should recall that copyright law protects expression, not ideas.   At what point is a character "expression" as opposed to an idea?  Or, put another way, is a story about an aging boxer from Philadelphia an idea, or is Rocky a characte protected by copyright law.

Determining when a character is "properly the subject of copyright law" is a job only a lawyer could love.  There are varying tests, facts that need to be shown, etc.  If you have questions about the specifics, feel free to drop me an e-mail.

Even if a character isn't protected by copyright law, it could be protected by trademark law.  Consider this: Mickey Mouse is a trademark for Disney's goods and services.

Bottom line: determining if a fictional character is protected by law is a headache.  Why does this matter?  Because ownership of fictional characters means the right to control how they are used.  After all, one could imagine that Sony would not be too thrilled about its character appearing excited about a competitor's product (though perhaps they don't care and have moved on to new advertising campaign ideas).

So, let's say you are creating characters that you want to protect.  What can you do to ensure that your character isn't used for the benefit of a competitor:

  1. Consider how much you've put into your character.  Is your character a mere archetype , or is there something more - a backstory, an identifiable but uncommon persona, catchphrases, etc.?  None of these by themselves will necessarily grant your character copyright protection, but they help (regardless of whether the legal test is the "sufficient delineation" test, the "story being told" test, or some hybrid of the two).

Remember, not all characters are deserving of legal protections, and so it may not be worth it to put your time and energy into building up every character in this manner.  

  1. Audit your ad agency agreements.  Who owns the ideas that your ad agency brings to you?  Who owns the physical execution of those ideas?  Only way to know for certain is to do an audit, and make corrections where there are gaps or inappropriate transfers of rights.  
  2. Consider whether your character can function as a trademark.  Trademarks are different from copyrights in that trademarks protect identifiers of the source or origin of goods and services.  Perhaps your character should be treated like Cap'n Crunch instead of Rocky.

Trademarks don't expire so long as you use them appropriately, but be careful when trying to claim expressive content as a trademark.  You can run into problems doing this (based on a Supreme Court case called Dastar which, among other things, held that one cannot use trademark law to do an end-run around the time limits of copyright law - that's an over-simplified statement of the law, and I strongly encourage you to speak with a tech-saavy lawyer about Dastar's implications if you have any questions about this).

The better approach is to consider the purpose of your character up front, and decide what form of protection is appropriate (if any).