‘World of Warcraft’ Creator Takes Battle to Court Over Game’s Characters
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The Court’s Opinion: Copyright Protection for Characters
To succeed on a copyright infringement claim, plaintiffs must establish that the allegedly infringed work was entitled to copyright protection in the first place. Plaintiffs must satisfy this initial prerequisite before moving on to prove that the elements of copyright infringement are met. But as the court in Blizzard Entm't, Inc. explained, characters are often not entitled to copyright protection. Under the scenes-a-faire doctrine, common elements in characters, scenes, and plots are not copyrightable. Copyright protection is available, however, for “characters that are especially distinctive.” To establish the requisite distinctiveness, the court explained, the character must (1) have physical as well as conceptual traits, (2) be recognizable as the same character whenever it appears, and (3) contain unique elements.
Plaintiffs in Blizzard Entm't, Inc. alleged that “dozens” of their characters had been copied by Lillith and uCool, but they failed to establish precisely which ones had been stolen, and why these characters were entitled to copyright protection. While they claimed that the characters were “distinctive …with names, distinctive physical appearances, clothing, weapons, traits, and other worlds,” the court held that these assertions were merely conclusory, and that more specificity was required. Similarly, the court held that plaintiffs’ “sweeping allegations” failed to tell defendants specifically which characters had been infringed. The court dismissed the suit, but granted Blizzard and Valve leave to amend their complaints and remedy these deficiencies.