Ninth Circuit Decision Does Not Spark Joy for Copyright Plaintiff Against Disney

Headline:  On March 16, 2020, the Ninth Circuit Court of Appeals affirmed the dismissal by the Central District of California of copyright claims brought by Denise Daniels against the Walt Disney Company, alleging that the characters in Disney’s Inside Out infringed characters she developed called The Moodsters.  The Ninth Circuit amended its order on May 4, 2020.  

Background:  Disney’s Inside Out (2015) centers on five anthropomorphized emotions that live inside the mind of an 11-year-old girl named Riley:  joy, fear, sadness, disgust, and anger:

By Sean Apple, the “Syborg”

Daniels founded the Moodsters Company and developed the Moodsters—five characters that are color-coded anthropomorphic emotions, each representing a different emotion: pink (love); yellow (happiness); blue (sadness); red (anger); and green (fear): 

Between 2012 and 2013, Daniels and her team developed the second wave of Moodsters, which were sold as a line of toys and books at Target beginning in 2015: 

Daniels alleged that she pitched the Moodsters to numerous companies, including Disney and its affiliate Pixar, and that she or a member of her team had contact with several Disney employees between 2005 and 2009.  

The district court granted Disney’s motion to dismiss on the grounds that the Moodsters were not copyrightable characters.   

Holding:  The Ninth Circuit affirmed the dismissal of Daniels’ copyright claims, finding that the Moodsters characters were not copyrightable.  Although characters are not enumerated as copyrightable subject matter under the Copyright Act, courts have a long history of extending copyright protection to characters featured in copyrighted works.  The Court analyzed the issue under two tests:  the Towle test and the Story Being Told test, finding that the Moodsters were not protected by copyright under either test.  

The Towle Test 

Under the Towle test [DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015)], a graphically-depicted character is entitled to copyright protection if (1) the character has physical and conceptual qualities, (2) the character is sufficiently delineated to be recognizable as the same character whenever it appears and displays consistent, identifiable character traits and attributes, and (3) the character is especially distinctive and contains some unique elements of expression.  The Court distinguished between the idea for a character and the depiction of that character, finding that the notion of using a color to represent a mood or emotion is an idea that does not fall within the protection of copyright.  The Court then found that the Moodsters did not meet the second or third prong of the Towle test: 

• The Court found that the Moodsters were not recognizable as the same characters in all appearances and lacked consistent, identifiable character traits and attributes: 

  • First, the Court found that the physical appearance of The Moodsters changed significantly over time and that it would be difficult to conclude that the original and the second wave characters were the same. 

  • Second, the Court found that the characters did not maintain consistent character traits and attributes because—other than the unprotectable idea of color and emotions—there were few identifiable character traits and attributes that were consistent over the various iterations and the second wave characters were “lightly sketched” characters without identifiable character traits. 

  • Third, the Court found that the Moodsters’ relationship to emotions was not consistent because the Moodsters were originally prone to a particular emotion, but in the second wave, the Moodsters were instead “mood detectives” who helped a boy with his feelings. 

  • Fourth, the Court noted that the names of the characters changed over time, which the Court found to be evidence “that Daniels never settled on a well-delineated set of characters beyond their representation of five human emotions.” 

• The Court found that the Moodsters were not especially distinctive and did not contain some unique elements of expression because, beyond each Moodster representing a single emotion, the characters were “lightly sketched” with only generic attributes and character traits. 

The Story Being Told Test  

The Ninth Circuit also extends protections to graphic and literary characters that constitute “the story being told.”  A character is not copyrightable under this test where “the character is only the chessman in the game of telling the story.” 

The Court found that the Moodsters were not the story being told because there was not any prolonged engagement with character development or a character study of The Moodsters.  Rather, the Court found that the Moodsters were mere chessmen in the game of telling a story in which particular emotions were explored. 

Practical Takeaways:  This case shows the limits of extending copyright protection to particular characters—just because a work is copyrighted does not necessarily mean that characters in the work will be afforded copyright protection.  “Lightly sketched” characters that have only generic character traits and attributes may not be eligible for copyright protection.  There is also a risk that changing characters too much over multiple iterations will cut against any attempt to use copyright to protect those characters.   

A copy of the opinion and order in Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir.), as amended on May 4, 2020, is located here.