1989 BatmobileIn advertising when one says “Brand Protection”, they instinctively think of trademark protection.  An often overlooked tool is copyright protection.  If in advertising you have developed a “character” (think Progressive Insurance’s “Flo” character or Haverty’s “Emily”) or have an object (think Geico’s Gekko or the Batmobile) that is essential to your advertising campaigns, under the right circumstances, it can be protected by copyright.  While trademark law can protect a specific individual rendition of the character, copyright will protect the persona.  In other words, you may be able to prevent a competitor from using a substantially similar character.

Certain characters in literature and in the movies have long enjoyed copyright protection (James Bond, Rocky Balboa, Tarzan, E.T., etc.).  The key is that in order to be afforded copyright protection, a character has to be distinctive and essential to the story.  Characters have to be especially distinctive, sufficiently delineated, and have displayed consistently, widely identifiable traits.

Most advertisements characters are interchangeable by type (i.e., the loud electronics salesman) and not protectable, however, there have been numerous advertising programs in which a character has clearly defined a distinct set of characteristic and the character is used over and over (Flo has appeared in over 50 Progressive Insurance commercials).  In such a case, copyright protection could attach to the character.  Also, if the ad is featuring an object that also has distinct characteristics is essential to the theme and, in a sense is treated like a character, it too can have copyright protection (i.e., Aflac’s duck).

There has been litigation over the copyrightability of the Batmobile, which is currently on appeal, and “Eleanor” (the 19071 fastback Ford Mustang from the movie “Gone in 60 seconds”) as to whether or not they are protected by copyright.  In terms of these cars, the courts had to consider the physical and conceptual qualities, as well as unique elements of expression in order for them to be copyright protected.

For example, the court found in the Batmobile case that “The Batmobile is known by one consistent name that identifies it as Batman’s personal vehicle.  It also displays consistent physical traits.  The Batmobile, in its various incarnations, is a highly-interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime.  Even though the Batmobile is not identical in every comic book, film, or television show, it is still widely recognizable because it often contains bat-like motifs.”  The court also noted that the Batmobile was “central to Batman’s ability to fight crime and appears as Batman’s sidekick, if not an extension of Batman’s own persona.”  As such, the court also thought that it could be qualified for copyright protection as a pictorial graphic and sculptural work.

Therefore, if you use a consistent character (person or object) that is essential to the theme of your ads and is defined enough, you might want to consider copyright protection in addition to the more traditional trademark tools in terms of brand protection.  If so, you need to register the copyrights and ensure the ad campaign is built so the characters have sufficiently defined and consistent characteristics to warrant copyright protection.