Graphically depicted characters are not among the “works of authorship” listed in 17 USC 102(a), which, argues the Moodsters, has created the opportunity for the Circuit courts to develop their own tests to determine whether copyright protection ought to attach.
The Moodsters® are five color coded characters which represent the emotions of love, anger, happy, sad and scared. Their creator filed a copyright infringement suit in response to Disney’s release of “Inside Out,” a movie in which five anthropomorphized emotions live within the mind of a girl. The district court granted Disney’s motion to dismiss, holding that the Moodsters® are not protectable by copyright, and the 9th circuit affirmed.
The Towle Test
The 9th circuit applies the three-prong Towle test, promulgated in DC Comics v. Towle, 802 F.3d 1012, 1021 (9th Circuit 2015) in order to determine whether copyright protection ought to be extended to graphically depicted characters:
- The character must generally have “physical as well as conceptual qualities;”
- The character must be “sufficiently delineated” to be recognizable as the same character whenever it appears; and
- The character must be “especially distinctive and “contain some unique elements of expression.”
The Court held that the Moodsters met the first prong, because the “each has physical as well as conceptual qualities.” But, the Court held the Moodsters failed the second and third, calling the second an “insurmountable hurdle” since “other than the idea of color and emotions there are few other identifiable character traits and attributes that are consistent over the various iterations.” In their analysis of the third prong, the Court distinguished the Moodsters from the Batmobile and held that the Moodsters were neither “especially distinctive” nor did they contain some unique elements of expression.”
The Moodsters petitioned for cert, arguing that the law surrounding the protection of graphically depicted characters is in chaos, with each circuit court applying its own test.
Colors and emotions…hmmmm…