Samuel J. Coe


Copyright law provides writers with a way to protect their original works of authorship, but courts often disagree over the scope of this protection and how far it can be extended for the fictional characters appearing within literary works. Characters like Holden Caulfield and James Bond have become extremely valuable forms of intellectual property, but even for such iconic figures it can be difficult to separate the character from the story to determine where one work ends and the other begins. To address this issue, the Second Circuit follows the "distinctly delineated" test, which asks whether a character has been sufficiently developed within the author's expression to merit independent copyright, while the Ninth Circuit has crafted the more exclusive "story being told" test, which only grants copyright protection to those characters embodying the story in which they appear. These inconsistent standards have resulted in unreliable protection that overly restricts the public domain and inhibits the creation of new works. This note examines the inherent goals of intellectual property protection and the historical treatment of literary characters, concluding that the "story being told" test is the better standard for the promotion of copyright interests.