Conan Properties Int’l LLC et al. v. Ricardo Jove Sanchez

United States District Court for the Eastern District of New York

Case No. 1:17-cv-00162-FB-RLM, Memorandum and Order of August 15, 2018

On August 15, 2018, the court issued its memorandum and order after a motion for default judgment in this case.  Plaintiffs own copyrights and trademarks Conan the Barbarian and six other characters: (1) Kull; (2) Ironhand, also known as Esau Cairn; (3) Bran Mak Morn; (4) Dark Agnes; (5) Solomon Kane; and (6) El Borak. Plaintiffs allege that Sanchez violated their rights by manufacturing, displaying, and selling (or offering for sale) miniature sculptures of these copyright-protected characters on Facebook and Kickstarter. Sanchez offered the sculptures for prices ranging from €27 (about $31) to €10,000 (about $11,425). Plaintiffs submitted a takedown notice under the Digital Millennium Copyright Act (“DMCA”) to compel Kickstarter to remove the sculptures, and Sanchez filed a counter-notice, causing them to remain. Plaintiffs filed this suit.  Sanchez never responded.

While this may seem like a trivial default judgment case, the noteworthy part of this case is how the court treated copyrights in characters.  While the Plaintiffs submitted evidence of literally hundreds of copyright registrations for Conan works and works including the other characters, they did not submit any copyright registrations of the characters themselves.  This is primarily because the U.S. Copyright Office will not register a copyright in a “character.”  One can register artwork of a character, but not the character in the abstract.  The court here took note of this, and confirmed that “copyright protection for characters is a result of their embodiment in original works of authorship.”

While this result may seem obvious, its still instructive to industries in which characters play a central role, including the video game industry.  Video game developers, by virtue of registering copyrights in the underlying works, namely, video games, also automatically get copyright protection for the protectible characters embodied within those games. One less thing to have to worry about down the road, and one more IP asset at your disposal for future use.

There was also a trademark element to this case, but it was not relevant to our interest in this case.  Curious what the figurines looked like? Here is an image from the defendants Facebook page (taken from the Complaint in this case), allegedly showing the figurine next to a cover of the Conan comic which “inspired” it.