The right to reproduce literary characters

Abstract

This chapter examines the copyright owner’s exclusive right to reproduce a copyright work in the context of literary character appropriation under US, Australian, Canadian and UK law. It highlights the issues that arise when considering whether a substantial part of the source work’s expression constituting the character has been appropriated, particularly with sequels; the nature and uncertainty of the similarity tests (particularly in US law); and how character appropriation engages with copyright’s idea-expression dichotomy. The chapter discusses the effect of the character as work doctrine, which recognises the literary character as a separate copyright work, in the substantial similarity analysis, showing how courts confusingly blur the distinction between recognising a character as a separately subsisting copyright work and applying the substantial similarity test to determine whether the source literary work has been infringed. It also highlights the blurring that can occur between the adaptation right and the reproduction right.