Horror and Copyright: How Scary Characters Shaped Legal Protection
While the spooky season has passed and we no longer hide under our covers while watching favorite horror characters like Michael Myers and Jason Voorhees in cult classics like Halloween and Friday the 13th, this article explores perhaps the scariest topic: copyright law. More specifically, how U.S. copyright law has played a significant role in these famous characters' history and how it has secured their legacy to continue frightening future generations.[1]
The Birth of Modern Horror and Copyright Issues
The story begins in 1968 when the forefather of modern horror movies took the big screen. Night of the Living Dead, directed by George Romero, was a box office phenomenon, grossing over $30 million (equivalent to approximately $250 million in 2024). However, Romero could have seen more profit from this success due to a crucial oversight. Before its premiere, the film's working title, Night of the Flesh Eaters, was changed by the distributor to Night of the Living Dead, but they failed to include the copyright notice in the final print.[2] Under pre-1978 copyright law, this omission meant the film immediately entered the public domain, making it unprotected by copyright law.[3]
Establishing the Legal Framework: The Distinctly Delineated Test
As horror movies' popularity surged, courts created standards to address increasing attempts to misappropriate iconic characters.[4] The landmark case Nichols v. Universal Pictures Corp.[5] established the "Distinctly Delineated" test, which introduced three crucial criteria for character copyright protection:
The character must have a clear personality and identifiable physical expression.
The characters must be recognizable outside of their original work.
The character must have unique attributes.
The Sam Spade Test
In 1954, Warner Bros. Pictures v. Columbia Broadcasting System, Inc.[6], refined character copyright protection through the "Sam Spade" or "story being told" test. This case, involving The Maltese Falcon's protagonist, Sam Spade, established that characters serving merely as "chess pieces" in a story cannot be separately copyrighted; however, characters who are fundamentally "the story being told" can receive independent copyright protection.
Modern Horror Icons and Their Legal Battles
The evolution of horror franchises has led to numerous significant copyright disputes where the Distinctly Delineated test and the Sam Spade test were vital in the courts' resolution:
Michael Myers (Halloween)
In Don Post Studios, Inc. v. Cinema Secrets, Inc.,[7] the iconic Michael Myers mask became controversial. The case resolved questions about mask copyright and reproduction rights, with Don Post Studios ultimately establishing their rights to the original mask design, allowing Halloween producers certain usage rights.
Freddy Krueger (A Nightmare on Elm Street)
New Line Cinema Corp. v. Russ Berrie & Co.,[8] the court addressed the unauthorized sale of merchandise featuring Freddy's signature razor glove. The court applied the Distinctly Delineated test, finding Freddy's unique appearance and characteristics warranted strong copyright protection, resulting in a victory for New Line Cinema.
Jason Voorhees (Friday the 13th)
Horror Inc. v. Miller,[9] tackled screenplay rights and character ownership. The case highlighted the complexity of rights ownership when multiple creators are involved, ultimately resulting in a split of rights between the original screenplay writer and the franchise owners.
Ghostface (Scream)
Easter Unlimited, Inc. v. Rozier[10] demonstrated how character protection extends to sports and merchandise. When N.B.A. player Terry Rozier attempted to use the Ghostface mask design in his merchandise, the courts upheld the original rights holders' claims, reinforcing the strength of character copyright protection.
Modern Entertainment
These landmark cases established frameworks for protecting character rights in streaming media, created guidelines for social media usage and fan content, and influenced how digital merchandise and NFTs can utilize character likenesses. Horror franchises also benefit from more robust international copyright protection, though enforcement varies by jurisdiction. The precedents set by these cases help creators protect their intellectual property globally, which is particularly important in an era of instant digital distribution. These cases have influenced character licensing agreements, merchandising rights structures, revenue-sharing models, fan content policies, digital distribution rights, and much more.
Looking to the Future
If you enjoy any creative work today, you can partly thank the characters that have scared us for decades. Their legal battles have helped ensure that the rights of characters' owners are protected, that owners are rewarded for their work, and that their stories are told authentically for generations of fans to come. The next time you watch your favorite horror film, remember that behind those terrifying masks lies perhaps even more formidable: the complex web of copyright law that keeps these characters alive and thrilling audiences year after year.
[1]Alexa Browning, The Horrors of Copyright Law: An Analysis of Character Copyright Issues & Iconic Horror Villains, 13 NYU J. Intell. Prop. & Ent. L. 163 (Fall 2023).
[2]George A. Romero, Night of the Living Dead, Walter Reade Organization (1968).
[3]Michael Kennedy, How Night of the Living Dead Accidentally Became Public Domain, Screenrant (Nov. 16, 2019), [;See also, 17 U.S.C.A. § 406.
[4]Samuel J. Coe, The Story of a Character: Establishing the Limits of Independent Copyright Protection for Literary Characters, 86 Chi.-Kent L. Rev. 1305 (2011).
[5] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
[6] Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc., 216 F.2d 945, 949–50 (9th Cir.1954), cert. denied, 348 U.S. 971, 75 S.Ct. 532, 99 L.Ed. 756 (1955).
[7] Don Post Studios, Inc. v. Cinema Secrets, Inc., 124 F. Supp. 2d 311 (E.D. Pa. 2000).
[8] New Line Cinema Corp. v. Russ Berrie & Co., 161 F. Supp. 2d 293 (S.D.N.Y. 2001).
[9] Horror, Inc. v. Miller, 335 F. Supp. 3d 273 (D. Conn. 2018), aff'd, 15 F.4th 232 (2d Cir. 2021).
[10] Easter Unlimited, Inc. v. Rozier, No. 18-CV-06637 (KAM), 2021 WL 4409729, at *1-*2 (E.D.N.Y. Sept. 27, 2021)
