Copyright in Characters: “The Moodsters” vs. Disney’s “Inside Out”

Stephen Carlisle April 16, 2020

Most often, claims of copyright infringement go to the artistic expression contained in a story. Rare is the case that claims a copyright in a character itself. But this is what happened in the case of Daniels v. Walt Disney Company. ¹

The plaintiff here claims to be an expert on “children’s emotional intelligence.” ² In the course of her work, she has created a group of colored anthropomorphic characters she has named The Moodsters. Each Moodster represents a different emotion. Pink = Love, Yellow = Happiness, Blue = Sadness, Red = Anger, and Green = Fear. ³ If this sounds familiar, you might be thinking of the Disney animated film Inside Out where color-coded animated characters represented the emotions Joy, Fear, Sadness, Disgust and Anger. Especially, as here, the Plaintiff not only pitched the idea to Disney, but alleges she spoke on the phone with Pete Doctor, the director of Inside Out. ⁴

Yet what makes this case stand out is the Plaintiff in not claiming copyright infringement over the plot of the Moodsters, she is claiming copyright infringement over the characters themselves. This is likely because the set-up has been used several times before, notably in the TV sitcom Herman’s Head, ⁵ and Disney’s animatronic theme park attraction Cranium Command which ran from 1989 to 2007. ⁶ Thus, many similarities that would result are most likely attributable to the treatment of a common idea. ⁷

The District Court dismissed the suit and the Plaintiff appealed. The result is a detailed opinion from the 9^th Circuit on the parameters of copyright in a character. The 9^th Circuit writes:

“A character is entitled to copyright protection if (1) the character has ‘physical as well as conceptual qualities,’ (2) the character is ‘sufficiently delineated to be recognizable as the same character whenever (citation omitted) it appears’ and ‘display[s] consistent, identifiable character traits and attributes, and (3) the character is ‘especially distinctive’ and contain[s] some unique elements of expression.” ⁸

Disney concedes that the Moodsters meet part one of the test. The problem for the Plaintiff lies in the second part. This is because the look and feel of the Moodsters changed drastically between the time they were created in 2005 and then “re-imagined” between 2012 and 2013. ⁹ This becomes more important because Disney had commenced production on Inside Out in 2010 ¹⁰ and would have been 2-3 years into the production process by the time Plaintiff made the changes. The Court writes:

“[T] the physical appearance of The Moodsters changed significantly over time. (citation omitted) In the 2005 Bible and 2007 television pilot, the five Moodsters have an insect-like appearance, with skinny bodies, long ears, and tall antennas that act as “emotional barometers” to form a distinctive shape and glow when an emotion is strongly felt. By the second generation of toys, The Moodsters look like small, loveable bears. They are round and cuddly, have small ears, and each dons a detective’s hat and small cape. This physical transformation over time was not insubstantial, and it would be difficult to conclude that the 2005 Moodsters are the same characters as those sold at Target in 2015.” ¹¹

The Court acknowledges that the physical appearance need not be static, but one must recognize the character once it makes the stage. While the appearance of Godzilla has varied over the years, it is consistently a “pre-historic, fire-breathing, gigantic dinosaur alive and well in the modern world.” ¹² And while six actors have portrayed James Bond, the character has consistent traits“his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; his sophistication.” ¹³

Also, Plaintiff’s cases rests in large part to characters who reflect color-coded emotions, an unprotectable idea that is merged into the expression. “[T]hese principles mean that [Plaintiff] cannot copyright the idea of colors or emotions, nor can she copyright the idea of using colors to represent emotions where these ideas are embodied in a character without sufficient delineation and distinctiveness.” ¹⁴

Lastly, the Moodsters identifying traits changed. In the first iteration, the Moodsters reacted to the emotions. In the later iterations they were “mood detectives.” ¹⁵ And across every iteration, the names of the individual Moodster changed with each iteration. ¹⁶

“While a change of name is not dispositive in our analysis, these changes across the three iterations further illustrate that [Plaintiff] never settled on a well-delineated set of characters beyond their representation of five human emotions.” ¹⁷

This is the danger of marking your characters indistinctly. Case in point is the famous (though somewhat apocryphal) conversation between Steven Spielberg and George Lucas, in which Spielberg expresses a desire to direct a James Bond film, which gives Lucas the chance to bring up the character of Indiana Jones. While James Bond and Indiana Jones share many of the same qualities (adventuresome ladies man who is good with his fists), Lucas outfits Indy with numerous distinct features: the hat, the whip, he’s afraid of snakes, which set him apart from Bond.

The Court does note that a character might be protected if it qualifies as the “story being told” e.g. a character study. ¹⁸ Clearly the Moodsters falls way short of that mark.

The more distinctly a character is marked, the more “quirks” the writer imbues the character with, the more copyrightable the character becomes, and the less it becomes merely a “chessman in the game of telling the story.” ¹⁹