This article explains the problems of converging such laws as copyrights laws and trademark laws in terms of defining whether or not characters can be protected by these laws. These characters can be protected because they take on a life of their own, however the extent of the protection is in question. With regard to copyright, copyright doctrines of the idea/expression dichotomy and fair use are of importance. Helfand writes, “owners and creators seek to wrap their fictional characters in a net of invulnerability- a net created through an artful interweaving of copyright, trademark and unfair competition laws”, and it is this protection which allows large corporations to profit off of characters. Helfand’s main argument is that the courts have merged its tests, reasoning and language used in determining infringement, in order to arrive at a single approach to recognizing character infringement rather than separating each approach. This he believes, if it goes unchecked, will “dilute the significance of a limited copyright term and hence make fewer characters available for ‘unauthorized’ expressive uses”. He goes on to express that the goals of trademark and unfair competition law no longer become used the way they were intended to be used and that it focuses it solely on whether or not characters are similar, or if a character’s reputation is harmed by the unauthorized use rather than looking at the likelihood of consumer confusion. With regard to Mickey Mouse, Helfand touches on the Walt Disney Productions vs. Air Pirates case, noting that Mickey Mouse is the story being told which called for the mingling of the elements of copyright infringement with trademark infringement because Mickey Mouse has “achieved a high degree of ‘recognition’ and ‘identification’”.
This article is important to my paper because it questions not the extension of the copyright act, which I have already touched on in other articles, but expresses the importance of keeping boundaries between different types of protection laws. If these laws continue to be merged and lack identifying main causes for such laws, then characters such as Mickey Mouse will continue to be protected in all ways which will continue to further it’s time spent under protection laws including copyright laws rather than entering the public domain. This argument is in opposition to my thesis and provides a different perspective.