If you’ve ever walked around Times Square in New York City for more than 30 seconds, you know that while SpongeBob SquarePants lives in a pineapple under the sea, SpongeyGuy SquareFace likely takes the PATH in every day from Hoboken. The dedicated professionals who portray beloved costumed characters and often slightly askew versions thereof have faced some trials of late, including confinement within specific “activity zones” in Times Square by the city’s Department of Transportation, arrests for minor disagreements over tips, and brawls with each other and passers-by, see Vera Haller, “After Years of Bad Behavior, the Costumed Characters of New York’s Times Square No Longer Roam Free,” LA Times, Aug. 3, 2016. Yet these costumed characters and the spirited performers within the oversized heads persist, for the love of the adoring fans who stop to take a selfie with them and for the money they subsequently expect, solicit or demand.

Intellectual property law protecting fictional—or literary—characters has evolved to recognize that it is often the protagonist or antagonist within a creative work that leave the longest-lasting impression on the audience. A positive response to such characters by the intended audience is the genesis, not surprisingly, for alternative and expanded commercialization by the author of the underlying work, and, maybe even less surprisingly, similar efforts by fans or impersonators of the author’s work. This can range from the fanfiction paradigm (see: the “Twilight” series inspiring the next-level spice of “Fifty Shades of Grey”) to the trademarkian efforts used to keep an owner of a movie theater from jumping out of a helicopter dressed as Batman the day the movie premiered in 1989. As set forth herein, there are multiple avenues for intellectual property (IP) protection of literary and graphic fictional characters, which include comprehensive copyright registrations, strategic trademark protections, and unfair competition and other state and common law claims.

Copyright Law Is to Fictional Characters as Spinach Is to Popeye