What distinguishes James Bond from Sam Spade of The Maltese Falcon?  Both of these iconic fictional characters have appeared in numerous media formats – including books, radio, television and film – and have been portrayed by multiple actors in films since their creation.  Under copyright law, however, only one of these characters – James Bond – has been deemed to merit copyright protection separate and apart from the works in which they appear.

Ordinarily, fictional characters are not afforded copyright protection unless the character is either (1) especially distinctive; or (2) so central to the story that the character is essentially the “story being told.”  Using these tests, courts have held that numerous fictional characters warrant copyright protection – e.g., Rocky Balboa, Mickey Mouse, Godzilla, Tarzan, E.T., Tom and Jerry, Holden Caulfield from The Catcher in the Rye, Scarlet O’Hara and Rhett Butler from Gone with the Wind, and Dorothy, Tin Man, Cowardly Lion, and Scarecrow from Wizard of Oz – but numerous other memorable fictional characters do not – e.g. Regan from The Exorcist and Sam Spade from The Maltese Falcon.

Our article in Bloomberg discusses the parameters of copyright protection for fictional characters.