“Lightly Sketched” Characters Not Copyrightable

By on April 2, 2020
Posted In Copyrights

The US Court of Appeals for the Ninth Circuit affirmed that “lightly sketched anthropomorphized characters representing human emotions” were not copyrightable. Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.).

Denise Daniels created The Moodsters Company. The Moodsters were five named characters, each color-coded to an emotion. The Moodsters Company developed a pitchbook in 2005, a pilot episode for television in 2007, and toys and books of a second generation of The Moodsters by 2013. Daniels and The Moodsters Company also pitched The Moodsters to Disney. In 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out.

Daniels brought a claim of copyright infringement against Disney. After the district court granted Disney’s motion to dismiss, Daniels appealed.

On appeal, the Ninth Circuit analyzed whether The Moodsters qualified for copyright protection under (1) the Towle test and (2) Warner Bros. Pictures’ “story being told” test.

Under the Towle test, a character is entitled to copyright protection if it (1) has “‘physical as well as conceptual qualities,’” (2) is “‘sufficiently delineated to be recognizable as the same character whenever it appears’ and ‘display[s] consistent, identifiable character traits and attributes,’” and (3) is “especially distinctive’ and ‘contain[s] some unique elements of expression.’” There was agreement that The Moodsters characters met the first prong of the Towle test.

However, the Ninth Circuit found that the second prong was an “insurmountable hurdle” for Daniels. Characters without “a core set of consistent and identifiable character traits and attributes” are not protectable, because they are “not immediately recognizable as the same character[s] whenever [they] appear.” Characters therefore “too lightly sketched” could not be protected by copyright. The Court analyzed the consistency in the depiction of The Moodsters’ physical appearance and character traits and attributes to determine if The Moodsters were sufficiently delineated. As for physical appearance, The Moodsters changed significantly over time. The Moodsters were “insect-like” with antennas that served as “emotional barometers” until 2007 but by 2013 looked like “small, loveable bears.” Such a large change in physical appearance would make it difficult to conclude that The Moodsters in 2005 versus 2015 were the same.

The Moodsters also did not have consistent character traits and attributes. Although, the Moodsters consistently represented five emotions through the iterations, the Ninth Circuit explained that under the established fact, the degree of consistency was insufficient for the characters to be entitled to protection. The 2005 pitchbook provided a short description of each character, but the later iterations of The Moodsters neither described nor portrayed the 2005 traits. The relationship between the emotions and characters also changed; each character responded with its designated emotion in 2005, but by 2015 The Moodsters became “‘mood detectives’” to help others cope with feelings. Finally, for every iteration of The Moodsters, each character had a completely different name. Concluding The Moodsters were only “lightly sketched,” the Court determined that the characters did not meet Towle’s second prong.

Finally, the Ninth Circuit concluded that The Moodsters did not fulfill the third Towle prong since each Moodster represented a single emotion with generic characteristics and attributes that were not “especially distinctive.”

The Ninth Circuit also analyzed The Moodsters using the Warner Bros. Pictures “story being told” test, one with a higher bar than Towle. In doing so, the Court explained that the Towle test was not the exclusive test for determining the copyrightability of a character. Under the “story being told” test, characters are copyrightable if they constitute “the story being told” in a work, not as “‘only the chessman in the game of telling the story’ but one that ‘so dominate[s] the story such that it becomes essentially a character study.’” However, there was no character development or study of The Moodsters since they were introduced only by “pithy descriptions” in the pitchbook, with even less development in the pilot. The Court concluded that The Moodsters were like “chessmen” telling the story, unqualified for copyright protection.

Cecilia Choy, Ph.D.
Cecilia Choy, Ph.D., focuses her practice on intellectual property matters and is a certified patent agent. Read Cecilia Choy's full bio.