The original, visual aspects of a character may be protected by copyright if they are sufficiently original. This may include the physical attributes of the character, such as facial features and specific body shape, as well as images of clothing and any other visual elements.
The U.S. Copyright Office will register visual art works that depict a character, such as drawings, sculptures, and paintings. A registration for such works extends to the particular authorship depicted in the deposit material, but does not extend to unfixed characteristics of the character that are not depicted in the deposit. Nor does it cover the name or the general idea for the character.
Fanciful costumes that depict a character may be considered useful articles for purposes of registration. Although they portray the appearance of the character, they also may serve the intrinsic useful function of clothing the human body. If so, they are subject to the separability test described in Section 924.3. As with all clothing, the Office will examine fanciful costumes to determine if they contain two- or three-dimensional design elements that are conceptually separable from the utilitarian aspects of the article, and to determine if those separable elements contain a sufficient amount of creative expression. See generally Registrability of Costume Designs, 56 Fed. Reg. 56,530 (Nov. 5, 1991) (discussing the Office’s policy and several federal court decisions on the registrability of costume designs).
When completing an application to register such works, the applicant should use an appropriate term to describe the authorship embodied in the deposit material, such as “2-D artwork” or “photograph.” Applicants should not refer to or assert claims in “character,” “character concept, idea, or style,” or a character’s generalized personality, conduct, temperament, or costume. If the applicant uses these terms, the registration specialist may register the claim with an annotation, such as: “Regarding authorship information: Registration based on deposited [pictorial, graphic, or sculptural]
authorship describing, depicting, or embodying character(s). Compendium 313.4 (H).” If the deposit material contains a well-known or recognizable character, the specialist may ask the applicant to exclude that preexisting material from the claim if the applicant fails to complete the Limitation of Claim portion of the application.
• Charles Crest creates a sketch of a field mouse with a straw hat and a mischievous grin. He intends to use the sketch in an animated film. He files an application that asserts a claim in “two-dimensional artwork” and “character.” The registration specialist may register the claim with an annotation, such as: “Regarding authorship information: Registration based on deposited pictorial authorship describing, depicting, or embodying character(s). Compendium 313.4 (H).”
• Chris Crow creates a series of drawings featuring a stylized flamingo in several poses and wearing different hats. He files an application to register his drawings under the title “Concept Drawings for
Character Designs” and he asserts a claim in “two-dimensional artwork.” The registration specialist may register the claim and may send the applicant a warning letter noting that the registration covers only the specific sketches included in the deposit.
• Chloe Crown creates a series of drawings depicting several well- known comic book characters. She files an application that asserts a claim in “character redesigns” or “new versions of characters.” The registration specialist may ask Chloe if she has permission to prepare these derivative works and to clarify the derivative authorship that she contributed to the preexisting material.