What is an original character and how does the copyright law protects it? In my first post on copyrights, I made this note:
“A character doesn’t become an ORIGINAL character by simply having a unique costume design, hairstyle, backstory, or by being in a different universe. The character must have unique abilities or powers. This is specially true to superhero or supervillain characters.”
A good example of an original character and a mere character are Spiderman and Deathstroke respectively. Both are quite popular, but only the first is original. As I have said in my previous post, for a character to be considered an Original Character, his/her main power or abiltiy or weapon must be unique or original.
Non-original characters, however, are still protected by copyright law. Suppose I use, without permission, the character, Deathstroke, in my comics and the similarity of costume is identifiable and especially if the name is the same, then I am using Deathstroke as the Deathstroke character, then I am infringing DC’s right to their character.
But if I have a character in my comics that looks similar to Deathstroke, my character is also wearing a suit and mask, weilds a sword, and has guns but his name is Redpool, then my character is different (especially if my character is female) and there’s no copyright infringement. This is because there’s nothing original in suits and masks, swords and guns. Infringement only occurs if I use Deathstroke as Deathstroke, that is, if I also copy his costume.
In contrast, if I have a character, which can shoot spiderwebs as weapon and is used to swing from one building to another, even if my character is female, has a completely different costume, or his source of strength is magical, and the webs come out from the fingers, I am still infringing on the rights of Marvel over their Spiderman character even if I am clearly not using Spiderman as Spiderman in my comics. This is because Spiderman is an original character.
Hence, in the case of an original character, even if the name, appearance, gender, and species, are completely different, even if it is clear that my character is a completely different fictional person by having a different story and biography, but because I copied the powers of an original character, I will be sued and will be penalized.
Characters are copyrigthable if sufficiently delianated. And for superhero characters, a unique power or ability or weapon is the best form of delianation. Sometimes, a combination of physical appearance, personality, and a generic ability can result to an original character. Example of this is Hulk. Even he has no unique power, the Hulk character is quite distinguishable or unique so that it is original.
But if your character has only generic abilities such as super strength, speed, flight, invulnerability, you can delianate it with a sufficiently unique costume.
However, copyright law will only prevent others from copying your character’s costume or external appearance since it is not really an original character. Others too can create characters with super strength, speed, flight, and invulnerability since these are generic and or public domain abilities.
But for an original character, the main protection is for the unique ability or power or weapon of your character. Hence, if someone makes a different character with different costume, story, gender, etc but copies the unique power or ability or weapon of your character, infringement occurs.
This is how copyright law protects original works. In contrast, I can make a character with all the abilities of Deadpool (assuming that the healing factor is also generic) since Deadpool is not really an original character. However, I cannot copy his costume.
There are articles on the net that talk about copyright for characters. Some actually show an erroneous understanding of copyright law while few are good. But the best article I’ve found so far is the one from Wikipedia.