In the Kleeman case, a large number of drawings or cartoons embodied the central figure known as “Popeye” or “Popeye the sailor”, appeared in various American and Canadian newspapers. The defendants, without the consent, imported and sold large consignments of similar dolls, toys and brooches under the name of “Popeye” dolls, etc. The plaintiffs claimed an injunction for infringement of their copyright. The Court of Appeal held that the defendants’ dolls (but not their brooches) were reproductions in a material form of the plaintiffs’ original artistic works, even though they were not copied directly from any particular sketch. The House of Lords, however, unanimously held that the brooches also infringed the plaintiff’s copyright. The main question here was as to the proper construction of the concerned section of the then Copyright Act, and the House of Lords adopted an approach to benefit the plaintiff. This case demonstrates the wide protection under copyright law available for fictional characters, in particular cartoon characters. However, it would be dangerous to overstate the case. The following cases reveal some problems that lie in copyright protection for fictional characters.
　　In Exxon Corp v. Exxon Insurance Consultants International Ltd,⑿ the plaintiff re-branded itself as “Exxon” and registered the name as a trademark. Considerable research and testing went into inventing this name, which was to be short, distinctive, easily memorized and devoid of meaning. The defendant used the word “Exxon” as part of its corporate name without the plaintiff’s license or consent. The plaintiffs brought an action in passing off and in copyright infringement to prevent the use of “Exxon” by the defendant, but failed in the copyright issue. In dismissing the appeal, the Court of Appeal held that the term “original literary work” was a composite expression denoting a written literary work of one or more words intended to offer information, instruction or pleasure in the form of literary enjoyment. To bring an expression within the term “original literary work” it was not sufficient that it could separately be described as “original”, “literary” and “work”, and although the term “Exxon” could thus be separately described, it was not an original literary work because it conveyed no information, provided no instruction and gave no pleasure. It was argued whether this analysis means that single words or phrases can never be literary works. Peterson J. in University of London Press v. University Tutorial Press Ltd⒀ left open the possibility that a word which is used as a title may in some circumstances be protected by copyright, but it would have to have “qualities or characteristics in itself” which would justify such recognition. Graham J. took a similar view in this case. It would certainly be exceptional for a word or phrase to be a literary work.⒁ However, as far as fictional characters are concerned, the general rule remains that copyright protection does not extend to the names of cartoon or other fictional characters. (Emphasis in original)⒂
　　A recent case also demonstrated problems arising from a fictitious name. In Mirage Studios v. Counter-Feat Clothing Ltd,⒃　the defendant made drawings of humanoid turtle characters similar in appearance to those of the plaintiffs, utilizing the concept of Turtles rather than actual drawings of Turtles. In this case, the name “Ninja Turtles” was held not to be capable of copyright protection of names; and more importantly, this case illustrated the problem in using copyright in cases of imprecise copying. Sir Nicolas Browne-Wilkinson summarized the base difficulties in copyright protection, which is particularly true in the cases of fictional characters.
　　First, there is the rule in copyright that you can have no copyright in a name, and on that basis it is said that Teenage Mutant Ninja Turtles, or Ninja Turtles, are names and not subject to any copyright. The point seems to me not altogether easy to say whether a descriptive invented name is to be categoriesed as a name or as a description. The second and more fundamental difficulty in copyright is the saying that “there is no copyright in ideas”. For myself, I find it difficult to determine what the phrase means in the present context. As I have said, although there are similarities in the graphic reproduction of the defendants’ product to those in the plaintiffs’ product, they are mainly reproductions of a concept, of the humanoid turtle of an aggressive nature. But whether that permits a claim in copyright or not seems to me to be a very open question; there is certainly an arguable case in copyright.⒄
　　 It was submitted that, “although an interlocutory injunction was granted it was by no means clear that at trial there would be no problem in saying that drawings of the concept of a humanoid turtle infringed copyright in claimant’s specific drawings.”⒅ Thus, there may be a point at which a drawing is so close to an idea that it is no longer the expression of that idea to qualify for copyright protection. However, characters in themselves cannot ordinarily fall within the category of “form”, they remain “idea”, being part of the theme of general plot (Emphasis in original).⒆ By comparison, a pictorial character is more likely to attract copyright protection than is a literary character. Some have even expressed the view that there is no separate copyright in a literary character in English law.⒇　
　　United States of America
　　In the USA, the Copyright Act does not expressly include “characters” in its sec 102 enumeration of copyrightable subject matter. Rather, a character may appear as a “pictorial” work, in a direct pictorial representation such as a cartoon; it may, likewise, be part of a “literary” or “audiovisual” work. [21] Pictorial characters have been given greater copyright protection than have literary characters. As far as audiovisual characters are concerned, these characters, like pictorial characters, are depicted visually, and like literary characters exhibit personality traits or “characteristics”. The treatment of audiovisual characters may vary, depending on whether the characters are more akin to pictorial or literary characters.[22] In practice, the American courts have developed two kinds of tests to determine the level of copyright protection afforded to a character: the “character delineation” test in Nickols v. Universal Pictures Corp.[23] and the “story being told” test in Warner Bros. Pictures v. Columbia Broadcasting System.[24]

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