Blending character traits in a cauldron may not be copyright infringement, says US Court of Appeals

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Blending character traits in a cauldron may not be copyright infringement, says US Court of Appeals

 Söğüt Atilla-Aydın Friday, November 28, 2025 - character copyright, copyright, idea/expression dichotomy, Ninth Circuit, Söğüt Atilla-Aydın, substantial similarity, US

Recently, the US Court of Appeals for the Ninth Circuit (Court) dismissed an appeal concerning a character copyright infringement claim. Upholding the decision of the District Court for the Central District of California, the Ninth Circuit held that Anna Biani’s (appellant) copyright over her characters Charlotte, Frederick, and Landon were not infringed by the characters Vanessa and Malcolm who appeared in a TV show by Showtime Networks, Inc (respondent), given the absence of extensive similarity that precluded independent creation or using common public sources.

Background

Biani writes stories on an online role-playing forum called “Murder & Roses: Victorian London Crime and Scandals” and obtained copyright protection for both her stories and characters in the US. The forum requires users to provide descriptions of the characters they create and use in their stories, and to identify an actor or actress that would look like their characters. For instance, Biani named Eva Green as the actress resembling Charlotte [further descriptions of those characters can be found in p.5 of the decision]. Respondent created a TV series titled “Penny Dreadful” which, according to the appellant, infringed her copyright over her characters as Vanessa – who was played by Eva Green [Merpel: Whoops! Coincidence?] – and Malcolm had similar appearances, personalities, and special abilities as Charlotte, Frederick, and Landon. 

Eva Green as Vanessa in Penny Dreadful (Image from the show's IMDb page)

The district court held that Biani could not plausibly demonstrate that the respondent had access to her work and that the similarities between the characters were not “striking” enough to suggest unlawful appropriation.

Biani appealed.

Court’s decision

As no challenges against the copyrightability of Biani’s characters were raised, the Court only assessed whether the district court had applied the two prongs of the infringement test. It concluded that, although it had erred in applying the first prong, it was not a substantial error that would have changed the outcome.

Prong one: Factual copying

It is not necessary to provide direct evidence demonstrating actual copying. Rather, it is possible to infer copying through indirect evidence suggesting that the latter work needed to have copied the former. According to the Ninth Circuit, this inference can be based on (i) the defendant having access to the copyright work, or, in the absence of it, (ii) any similarity between the two works, including the ones between unprotectable elements. Although the appellant could not submit evidence demonstrating the respondent had access to her work, she argued that it would have been “virtually impossible” for the respondent’s allegedly infringing work to be independently created.

Biani argued that the resemblance of “common physical appearance, traits and personalities” of the characters, their “common vocation as witches”, their “depiction using the ‘likeness of Eva Green’”, sharing “common [family] histories” and “powers of clairvoyance”, and many more similarities implied that the respondent “blended” attributes of her three characters “in a cauldron” in creating Vanessa and Malcolm. As the majority, if not all, of these similarities relate to unprotectable features of Biani’s works, the district court excluded them from consideration. However, upholding Biani’s objection, the Court underlined that, at the first step of the infringement test, any kind of similarity needs to be taken into account as the aim here is merely to ascertain whether the defendant had copied from the claimant – not whether the defendant infringed the copyright hold by the claimant. That said, the Court still concluded that the “actual reading of the two works” revealed significant differences, “fatal” to the appeal (p.13).

This holistic assessment of the works at hand might sound reasonable, as it only weighs the possibility of copying against that of independent creation (or the use of common public domain features). However, it also seems to run the risk of further blurring the line between ideas and expressions, if not practically making it obsolete [see Nicole Roodhuyzen]. Although the Ninth Circuit itself has attempted to preserve the distinction between ideas and expressions by emphasising that its test is not assessing the similarity of ideas, it nevertheless ended up suggesting that a similarity between the “total concept and feel” between two works will support a finding of copyright infringement [see Pamela Samuelson]. By keeping consideration of similarities caused by unprotectable elements, abstract concepts, and feelings created by two works in the infringement test alive, the Court essentially treats the reproduction of unprotected features as, at the very least, something undesirable.

Prong two: Unlawful appropriation

It is the second step of the test, as the Court reiterated, where innocent and unacceptable copying are distinguished. Focusing this time only on the protected elements by filtering out common ideas building up the plot of the stories and personality traits of the characters, the Court held that there was not a substantial similarity between Biani’s and Showtime’s works.

Although the second prong of the test appropriately acknowledges that some types of copying is permissible and aligns with one of US copyright law’s overarching aims of prohibiting only the creation of substantial copies of original expressions, it is not clear why this prong must be preceded by an assessment of all the similarities between two works. Instead of providing room for assessment of unprotectable elements, courts need to prioritise revealing the similarities between protectable elements [see Samuleson]. Because the current practice of the Ninth Circuit seems to contradict the principle of procedural economy by requiring courts to undertake the same task of identifying similarity twice. Moreover, analysing only the protectable elements might be more beneficial and effective as this would protect the legitimate interests of authors only to a justifiable extent and would allow and encourage the creative re-use of parts of existing works [see Sandra Aistars], eventually “enhance[ing] the policy goals of copyright” [see Roodhuyzen]. Therefore, in the absence of direct evidence of copying and the defence of independent creation, establishing access to the original work and substantial similarity between the protected elements should be not only sufficient but also the sole relevant factors in determining whether infringement has occurred.

Concluding remarks

The Ninth Circuit has established that characters who (i) have physical and conceptual qualities, (ii) possess and consistently demonstrate identifiable traits, and (iii) are particularly distinctive are entitled to copyright protection [IPKat here, here, and here]. It cannot be challenged that some characters are indeed capable of standing out from the stories they appear in and gaining a separate life beyond the works that brought them into existence, such as Harry Potter, Mickey Mouse, and Ross Geller. It should, however, be noted that the distinctiveness of these characters primarily stems from abstract concepts which are materialised through their consistent use and appearance in relation to the relevant character, such as behavioural patterns, personality traits, stylistic choices made in relation to their creation, and perhaps some catchphrases associated with them [Merpel: Mmm, so something like “We were on a break!”?]. Since these qualities seem more inclined to ideas rather than expressions, it is worth approaching characters with caution and only providing protection to them if those traits are clearly materialised so as to constitute a work on their own. 

A witch-Kat trying to find out a spell  that would secure her a copyright...

Looking at Biani’s characters, it is not entirely clear why and how they were considered worthy of protection. If Charlotte, Frederick, and Landon had traits that justified treating them as Biani’s original expressions, why were similarities grounded in those very traits filtered out at the second step of the infringement analysis as unprotectable elements? This considerable contradiction seems to render Biani’s copyright largely meaningless. It can thus be argued that a better approach would be not to provide separate copyright to these characters, but instead to allow them to enjoy protection only through the copyright subsisting in Biani’s stories where they appear, particularly insofar as they constitute substantial parts of her works. [Merpel: OK, I see the point, but I am an exception, right? I want my copyright!] 

Image credit: Gemini

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