Many courts have permitted various aspects of unfair competition law to protect fictional characters. However, as with trademark law, unless a fictional character is used wrongly in a commercial context, it is unlikely that unfair competition laws would provide protection for the fictional character. While there may still be some degree of uncertainty and inconsistency regarding the legal protection of graphic characters, the legal protection available for fictional characters is even less uncertain and more inconsistent. Therefore, as a generalization, fictional characters have less legal protection than graphic characters. This is due to several factors.
Courts are uncomfortable affording protection to fictional characters that they are unable to see.
The scope of legal protection is not as broad for fictional characters in that copyright law is the dominant form of protection for fictional characters while graphic characters may be broadly protected by a combination of copyright, trademark and unfair competition law. In addition, intellectual property law is usually used to prevent a diminution in the value of intellectual property. Therefore, unless an infringer blatantly misappropriated a fictional character's name and exactly duplicated a character's characteristics the damages complained of would often be more of an artistic and subjective nature rather than commercial damages, and courts frequently do not know how to compensate for these types of damages. Thus, the protection of a fictional character for artistic rather than commercial purposes may encounter particular difficulty. In fact, the most difficult aspect of protecting a fictional character is that one may be required to demonstrate that the value of the particular fictional character has decreased, and not that one has been harmed artistically since many courts would be unsympathetic to such a plea.