In Nichols, the plaintiff was the author of a play, “Abie’s Irish Rose”. The defendant produced a film, “The Cohens and The Kellys”, which was alleged to infringe the plaintiff’s work. Learned Hand held that, even assuming copying was established, there was no infringement of either plot or characters. Although in Nichols the court did not accord copyright protection to the characters, Learned Hand in dicta suggested the test in relation to characters:
　　Nor need we hold that the same may be true as to the characters, quite independently of the “plot” proper, though as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “idea” in a play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.[25]
　　Under this test, a character could be provided copyright protection apart from the story in which it originally appeared, if the character were well-developed. That is to say, copyright protection would be granted to a character if it were developed with enough specificity so as to constitute protectable expression. However, it was argued that no specific definition or guide lines were given as to how developed a character must be in order for it to be copyrightable.[26]
　　In the Sam Spade case, the Ninth Circuit attempted to clarify the uncertainty of the “character delineation” test in Nichols but only succeeded in laying down another test, the “story being told” test. In this case, the entire copyright of “The Maltese Falcon” novel was assigned to the plaintiffs but the author of the “Sam Spade” novels continued to use the “Sam Spade” character and assigned the right to use the character to the defendants. The court held:
　　Even if the owners assigned their complete rights in the copyright to the Falcon, such assignment did not prevent the author from using the characters used therein, in other stories. The characters were vehicles for the story told, and the vehicles did not go with the sale of the story.[27]
　　Thus a character that is part of a story but does not itself “really constitutes the story being told”[28]　is not copyrightable. According to the Sam Spade case, a character has to constitute all or substantially all of the work to attract copyright. Sometimes it is hard to satisfy the “story being told” test.　In some circumstances, such as being a substantial part of the work, a character seems to have no room to warrant copyright protection. Even so it was considered that the Sam Spade standard would lead to a result which excluded virtually all characters from copyright protection.[29]
　　Since the Sam Spade case, outside the Ninth Circuit, the “story being told” test has encountered rejection, engendered confusion, and generally not been followed. Even within the Ninth Circuit, some courts interpret this test liberally, and recent Ninth decisions exhibit uncertainty as to whether they are still bound by the Sam Spade decision.[30] A case in point is Walt Disney Productions v. Air Pirates.[31] In this case, after confirming the court’s opinion in the Sam Spade case lending “some support to the position that characters ordinarily are not copyrightable”, Cummings J. said, “Because comic book characters therefore are distinguishable from literary characters, the Warner Brothers language does not preclude protection of Disney’s characters.” Thus the Ninth Circuit appeared to struggle to limit but still maintain the viability of its Sam Spade rejection of character protection outside of the original work, by concentrating on the peculiar pictorial and static nature of the cartoons involved. However, in Anderson v. Stallone[32] , Keller J. stated that the Sam Spade case had not been explicitly overruled by the Ninth Circuit, but it was also plausible to interpret Air Pirates as applying a less stringent test for graphic characters. He said, “in an implicit acknowledgment of the unsettled state of the law, in considering the character at issue in Olson,[33]　the circuit court evaluates the characters in the suit under both tests”(Emphasis in original). Obviously, with the passing of time, the distinction between the “character delineation” test and the “story being told” test has become more and more obscure. In order to meet the need of legal protection, the Ninth Circuit adopted a more liberal test to approach copyright infringement of fictional characters: on the one hand, those decisions have diminished the impact of the Sam Spade case; on the other hand, the inconsistency of application of these two tests, to some extent, has led to uncertainty in any given instance as to whether a character, particularly a literary character, will be protected by copyright.[34]
　　Canada
　　Copyright protection of fictional characters in Canada is broadly along similar lines to that available under English law.[35] Canadian jurisprudence, like that in UK, generally has afforded protection only to the pictorial representation of a fictional character. However, recent decisions in Canadian courts have seen changes in this field.

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