The Character Without an Author: Character Copyright Protection in the Age of Generative AI

Why It Matters

The ambiguity threatens IP owners’ ability to enforce character rights and could reshape licensing strategies in an AI‑driven creative economy. Clarifying the doctrine is essential for protecting valuable brand assets amid rapid technology adoption.

Key Takeaways

• Eleanor Mustang deemed non‑character by 9th Cir. in 2025
• AI‑generated works lack human authorship, thus unprotectable
• Consistent character traits remain key for copyright eligibility
• Excessive AI variations may dilute a character’s distinctiveness

Pulse Analysis

The legal landscape for character copyright has evolved from case‑by‑case judgments to a more structured three‑factor test. Courts examine whether a character possesses both physical and conceptual qualities, whether it is sufficiently delineated to be recognizable across appearances, and whether it exhibits a level of distinctiveness that sets it apart from generic figures. Landmark decisions, such as *Towle* (protecting the Batmobile) and *Daniels v. Walt Disney* (upholding Rocky), illustrate how courts balance these criteria, while the recent *Carroll Shelby Licensing* case underscores the limits of protection when a figure lacks anthropomorphic traits or consistent design.

Generative AI introduces a new layer of complexity. The U.S. Copyright Office and recent rulings, including *Thaler v. Perlmutter*, have consistently held that works created without meaningful human input are ineligible for copyright because they are considered machine‑authored. This stance means that an AI‑generated character, even if novel, cannot be registered. However, the presence of an already protected character within AI‑generated content does not automatically extend protection to the new work, leaving a gray area where the underlying character remains protected but the AI‑derived expression may fall into the public domain. Recent registration denials, like the Van Gogh‑styled sunset, highlight the practical implications for creators.

For IP owners, the prudent approach is to treat AI outputs as drafts or assistive tools rather than final expressive works. Maintaining thorough documentation of human contributions—such as substantial edits, original sketches, or narrative development—can help preserve the human authorship needed for protection. As generative tools become embedded in creative pipelines, courts and the Copyright Office will likely refine the doctrine, but until clear guidance emerges, firms should adopt rigorous internal controls to prevent inadvertent dilution of character distinctiveness and safeguard valuable brand assets.