Copyright and the Protection of the Digital Actor

Once a digital actor has been created, how can she be protected against use by others?

Someone may want to use a digital actor appearing in one film in another film... or on soap, belt buckles, mugs, clothing, action figures, cartoons, or video games.

In considering protection for digital actors, the closest analogy in existing cases is the protection given to a human character in a film.

This character is created partly by the filmmaker, partly by the actor, and partly by the physical characteristics possessed by the actor.

Similarly, digital actors are created by combining elements of human beings and elements created by human beings. Digital actors appearing in films, like fictional characters, are elements of a copyrightable work. They are capable of moving from one story to another, changing, growing and undergoing new experiences.

A fairly complex body of law has developed around the question of when a fictional character is protected by copyright, apart from the work or works in which it has appeared... when a character alone, separate from any particular plot, is protected against copying by another.

Unfortunately, the cases provide standards that are conflicting, confusing and difficult to apply.

Conclusion

The law moves more slowly than technology, particularly in the 21st Century, when technology is developing at a blindingly fast pace.

Nowhere is this more likely to be the case than in the creation and protection of digital actors.

In dealing with the protection of digital actors, we need a more contemporary, flexible, and workable approach than the ones (purportedly) used in protecting fictional characters. In dealing with the creation of digital actors, infringement and fair use should be interpreted with some liberality, so that new technology and creation are not unduly inhibited.