Although it is rather evident that copying of a particular fictional character has occurred if one uses identical or substantially similar language to describe their fictional character, but what more frequently occurs is a taking of the more abstract character traits and elements that only conjure up a mental image of that character for the reader. Although the decisions in cases involving the protection of fictional characters have not been consistent, the prevailing view has been that fictional characters are copyright protected.
In reality, none of the verbally described characteristics of the fictional character are as dominant as the visually depicted characteristics of a graphic character and therefore the copyright law distinction between an unprotectable idea and protectable creative expression may prevent copyright law from protecting the fictional character. However, the general trend with respect to copyright protection must be categorized as one of restrictive protection rather than an all-encompassing scope of protection.
It is only by maintaining control and protection of the fictional character that revenue streams may be maximized for the creator/publisher of that character.
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The underlying reason for this varying degree of protection stems from the fact that similarities between fictional characters are frequently less concrete than those for graphic characters.
Usually fictional characters are not represented by a singular physical image but instead are merely representations that appear in the reader's imagination and therefore different fictional characters are only abstractions that cannot easily be compared.
However, although the convergence theory exists for fictional characters it is not as demonstrable as it is for graphic characters.
Fictional characters have the same basic characteristics as graphic characters in that they portray the uniqueness of a particular character; the character has a name, physical appearance and attitude or character traits.
The Nabokov estate has reacted to the publication of Lo's Diary by bringing a lawsuit against Ms. This suit makes one wonder whether new light can be cast on our cultural heritage only after the term of copyright has expired." Three distinctive bodies of law -- copyright, trademark and unfair competition -- provide overlapping protection for a fictional character.
This has led one commentator to conclude that the current situation that exists in many courts has resulted in a convergence of these distinct bodies of law into a new body of law formulated solely to protect characters.
Even though most stories and plots are forgotten, the characteristics of a fictional character frequently remain fixed in a reader's imagination; this fixation may then provide the true underlying value of a particular literary work or series.