In 2020, the Ninth Circuit was called upon to determine whether the Moodsters, “lightly sketched anthropomorphized characters representing human emotions” are subject to copyright protection. Daniels v. Walt Disney Co., 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.). (IP Update, Apr. 2020)

The Moodsters are five animated characters, color-coded to represent different human emotions. The Moodsters Company pitched the Moodsters to Disney and in 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out. The Moodsters Company sued Disney for copyright infringement and the district court granted Disney’s motion to dismiss.

On appeal, the Ninth Circuit analyzed whether the Moodsters qualified for copyright protection under (1) the Towle test and (2) Warner Bros. test. The three-prong Towle test requires that an animated character have physical as well as conceptual qualities; is sufficiently delineated to be recognizable as the same character whenever it appears and displays consistent, identifiable character traits and attributes; and is especially distinctive and contains some unique elements of expression. The Warner Bros. Pictures test requires the characters dominate the story such that they are the story being told.

Under the Towle test, Disney did not contest that the characters have physical qualities. It was the second prong that proved fatal. The appellate court reasoned that “a character that lacks a core set of consistent and identifiable character traits and attributes is not protectable, because that character is not immediately recognizable as the same character whenever it appears.” The Ninth Circuit compared the Moodsters with characters like Godzilla, a consistently prehistoric, fire-breathing, gigantic dinosaur alive and well in the modern world, who maintains consistent and identifiable character traits and attributes across various productions and adaptations. The court found that because the Moodsters did not display recognizable, consistent, identifiable character traits wherever they appear, they are not protectable by copyright. The court found further found the Moodsters failed the third prong in that they were not “especially distinctive.” The Ninth Circuit concluded that even under the Warner Bros. test, the Moodsters were not entitled to copyright protection.

In January 2021, the Supreme Court denied the plaintiff’s petition for certiorari