In 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).
Continue Reading Using Copyright to Protect Your Brand’s Characters