ABSTRACT
Copyright law gives special treatment to characters in narrative works. That special copyright protection has long been a source of controversy and legal uncertainty. But it also raises a threshold question, heretofore unanswered in doctrine and scholarship. What exactly is a character? Batman certainly is; what about his car? Freddie Krueger is plainly a character; what about his glove? Undertheorization of ‘characters’ has invited courts to expand special character copyright protection rules to things decidedly not character-like, placing at stake millions of dollars, clashing creative forces, and arguably the very essence of copyright law.
This Article identifies the need for a test for characters, and offers such a test. Insofar as characters deserve special protection in copyright law, it is because characters are special in literature, and this Article leverages an exploration of literary theory to explain why. Literary theorists have long understood that characters are unique vehicles that readers can connect and identify with. To do so, characters must think and act like their (human) readers; that is, they must have mental personalities and agency to act upon their thoughts.
Agency and personality should be the qualifying test for characters in copyright law. Such a test is consistent with existing case law, and it renders copyright law consistent with the expectations of authors and readers. More importantly, it helps the larger ongoing controversies over copyright protection of characters. By restricting copyright law’s special protection of characters to literary entities that are actually characters, the difficult questions surrounding such special protection are cabined to a narrow field where those questions are the most salient and least likely to result in unintended consequences. Ultimately, limiting character copyright protection to actual characters best promotes the underlying purposes of copyright law, namely the promotion of access to creative works.
Duan, Charles and Bamberger, Rachel, Defining the Character in Copyright Law (February 27, 2026). Forthcoming, 79 Stanford Law Review (2027).
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