Copyright in video game characters

From Mario to Lara Croft, video game characters regularly break free of their original form to take over the big screen and merchandise, generating significant revenue. Yet behind the success of these icons lies a genuine intellectual property issue: the legal status of these hybrid creations, at once fragments of computer code and visual and narrative works of art.

Now classified as a complex multimedia work, the video game calls for a distributive reading of its components to allow independent protection of its characters to emerge. The central issue is then to determine how copyright applies to video game characters. We will analyse the criteria of originality and concrete form required to lift a character above mere technical archetypes, before considering the legal strategies of cumulative rights needed to sustain the economic exploitation of these assets in the face of their inevitable entry into the public domain.

I. Recognising the character as an independent protectable work

A. The distributive reading of video games, a gateway to independent protection

Copyright protection for video games is no longer in any doubt. An interactive multimedia work by nature, the video game is subject to a distributive reading in intellectual property law: it breaks down into a software part, subject to its own special regime, and a part classified as a work eligible for copyright protection. It was the French Court of Cassation’s Cryo ruling that confirmed the idea that a video game cannot be reduced to its software dimension alone, but is a complex work each of whose components is subject to the regime applicable to it according to its nature. Thus the music, the script and the characters making up a video game each enjoy protection that can be claimed independently of the game that houses them.

However, this distributive breakdown is not a title of ownership. It opens the way to protection, but does not guarantee it. Access to copyright remains, as always, subject to its own conditions. Article L. 112-1 of the French Intellectual Property Code provides that copyright protects works of the mind, whatever their form of expression. Case law has clarified this definition by requiring the work to be original, understood as bearing the imprint of the author’s personality expressed through free and creative choices, and to be given concrete form, that is, perceptible by the senses, thus excluding ideas from any protection.

A video game character, like any fictional character from literature or cinema, can therefore claim copyright protection provided it meets these cumulative requirements. It is now accepted that a fictional character can be a work of the mind protectable in its own right, independently of the work in which it comes to life. Copyright protection for characters is thus not an invention of video game law. Fictional characters traditionally drawn from literature, comics or cinema, such as Mickey Mouse and Tintin, have been recognised as protectable by copyright, provided they embodied, in a tangible form, the imprint of their author’s personality. The originality requirement is decisive here. As a result, if a character’s features are too generic or dictated by the game’s genre, the lack of intrinsic originality will prevent copyright protection.

B. The originality filter: from archetype to singular expression

At the heart of copyright lies the principle that protection never applies to ideas or concepts, but exclusively to the concrete and original form in which they are expressed. In video games, this principle creates an implicit hierarchy based on how developed the character is.

The main character of a video game with a strong narrative and visual identity could easily meet the conditions for copyright. But the question seems more complex for archetypal characters, which by definition lack individuality. Built from collective representations and pre-existing codes, these characters belong to the common stock of collective imagination and game design. And copyright cannot monopolise a concept. One cannot, for example, claim copyright over the abstract concept of the elf, the medieval archer or the classic “wise old man”. In this sense, distinctive characters such as Sonic, Lara Croft or Mario are more likely to qualify for copyright protection than the “ordinary soldier” of a combat game with no strong narrative or visual identity.

This question was at the heart of the American decision Capcom v. Data East (1994), handed down by a district court. In that case, Capcom alleged similarities between the characters and fighting styles of its iconic game Street Fighter II and those of Data East’s Fighter’s History. The judges rejected most of the claims, considering that the similarities rested only on stereotyped characters (stock characters) lacking originality. Archetypal characters such as the massive fighter or the one throwing energy balls could therefore not be appropriated, as they belong to the generic conventions of martial arts and the fighting game genre.

Transposed into French law, this logic fits well with the originality requirement: for a video game character to be protected, studios must move beyond the idea or the genre. It is the accumulation of creative choices that will give concrete form to the work’s originality and make it possible to show that there is an original creation and not a mere abstract archetype.

II. Protection over time: from the author’s monopoly to strategic cumulation

A. Economic rights, the foundation of transmedia exploitation

Once the criteria of form and originality are met, copyright gives its owner an exclusive monopoly of exploitation over the video game character. This monopoly is based mainly on the economic rights set out in Articles L. 122-1 et seq. of the French Intellectual Property Code, which include the right of performance (showing the character on screen) and the right of reproduction (its physical or digital fixation). In practice, these prerogatives are the essential legal basis for the growth of merchandise and transmedia. Turning the character into figurines or clothing, or adapting it into films and books, therefore requires the prior authorisation of the copyright holder. This economic right also arms the studio or publisher against infringement: in the event of unauthorised use of an original character, the rights holder can bring an infringement action. It should be remembered, however, that this economic protection is not perpetual.

B. Cumulation with industrial property in the face of the public domain

While copyright offers real protection to video game characters, it does run up against a time limit inherent in its very nature. Article L. 121-1 of the French Intellectual Property Code provides that the author has a perpetual, inalienable and imprescriptible moral right, which survives the transfer of ownership rights. Nevertheless, for the studio or publisher holding the economic rights, the statutory expiry period is a major commercial risk. Under Article L. 123-1 of the French Intellectual Property Code, economic rights expire seventy years after the author’s death. For a collective work, this period runs from 1 January of the calendar year following publication, while for a work of collaboration, the relevant year is that of the death of the last surviving co-author. When this period expires, the character falls into the public domain, preventing the rights holders from monopolising the revenue from its use. This shift therefore requires planning for protection to be taken over by other means.

This is where industrial property emerges as a strategic alternative. Cumulative protection makes it possible to combine copyright with trademark law and with design law. While copyright remains very effective because it arises without any formalities, trademark law offers protection that is potentially unlimited in time. By filing an application with the INPI (the French intellectual property office), the owner acquires, under Article L. 712-1 of the CPI, a right that can be renewed indefinitely every ten years, provided it is genuinely used. The character can thus remain the exclusive property of the studio even after the economic copyright has expired. Registration as a design (Article L. 511-1 of the CPI) completes this arsenal by protecting the character’s visual appearance for a maximum of twenty-five years. Combining these different rights is therefore a genuine strategic choice in asset management.

Ultimately, copyright allows independent protection of the video game character, separate from that of the game’s other components. Subject to the required conditions, it gives the author economic and moral rights. Although it temporarily limits the rights holder’s interests, the expiry of economic rights guarantees a fundamental balance with creative freedom. The character’s entry into the public domain thus offers new material to the authors of tomorrow. It is therefore up to the rights holder to allow free reuse of its character or to extend its exclusivity through industrial property mechanisms.

Bibliography

Legislation

• French Intellectual Property Code

Case law

• Cass. 1re civ., 25 June 2009, Cryo, No. 07-20.387, published in the Bulletin
• US District Court, Capcom U.S.A. Inc. v. Data East Corp., 16 March 1994

Legal scholarship

Lectures

• J. Lapousterle, Introduction au droit de la propriété intellectuelle, lecture notes, 2025

Book

• N. Binctin, Droit de la propriété intellectuelle, 8th ed., LGDJ, 2024

Online sources

• E. Pierrat, « Du droit d’auteur au droit des marques : comment les personnages de fiction ont fait leur entrée à l’INPI », Village de la Justice
• N. Dreyfus, “Intellectual Property in the video game industry: The complete guide to protecting your studio”, Dreyfus, 4 March 2026

Dina ABDELLAHStudent in intellectual property and digital law

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