This article has been written by Vibhuti thakur, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
It has been published by Rachit Garg.
Table of Contents
Intellectual Property Law is a branch of law that protects the expression of ideas by people. However, it does not protect the idea itself. It includes literary and artistic work, designs, symbols, inventions, and discoveries. There are many ways to protect such intellectual property, e.g., Trademark, patent, design, trade secret, and copyright.
These tools are used in different areas for the protection of the ownership rights of authors.
Copyright is one of the incorporeal and intangible rights in the world of intellectual property used for the protection of literary, dramatic, artistic, and musical works. These fields often include the work of imagination, and poetic characters are made repeatedly. Such poetic characters are called fictional characters.
Copyright protection for fictional character : meaning and scope
Copyright protects the creative work of the owner, such as literary, dramatic, artistic, and musical works. Not only the movies or shows, but the copyright also protects the imaginary characters developed in the creative work of the author. Such a character is known as a fictional character. E.g., Tanjiro and Rengoku in the Demon Slayer anime series and Captain America and Iron Man in the Marvel series.
Procedure for obtaining a fictional character copyright
In order to get the protection of a Fictional character’s copyright, it must be registered as a copyright.
1. For the Fictional Character to be eligible for copyright, it must be unique to the author or writer of that particular character.
2. Such a character must be expressed in either some literary work or any form of dramatic work, e.g. Short films, Youtube videos, movies, musical work, etc. It must not merely be an idea in a person’s mind.
3. After the passing of the eligibility test, the next step is the application for filing for the registration of copyright for such a Fictional Character. The filing fee varies from country to country.
4. Along with the application of copyright to a fictional character, a copy of the details of such a fictional character must be filed.
After the registration process is completed, the fictional character of the author is protected and the author is authorised to protect or licence such a fictional character as per his will. The law will provide him with remedies in the event of any infringement of this copyright.
Misappropriation of fictional characters
Misappropriation of fictional characters means that a third party is trying to gain an undue advantage by using, copying, or slightly modifying the original artistic work of the author.
Such a third party is trying to gain unfair advantage from the goodwill of the original author by reproducing a copy of substantial similarity to that of the original work.
Although the Indian Courts have a lenient attitude toward granting protection to fictional characters, it is very difficult to prove a well-delineated character in India. To get protection from such misappropriation, the author must be able to prove his genuine work as well as the ‘substantial similarity’ between his work and the work of the infringer.
Remedies for misappropriation
For the fictional character to be protected from misappropriation, certain conditions must be fulfilled:
- The fictional character must be copyrightable; that is, it must be well delineated, unique, and very distinct.
- The story of the show, movie, or artistic work must revolve around such fictional characters.
- The author must establish that he is the author of the character and that there are no previous instances of such character in any work of art.
- Such an author must also establish that the person infringing the copyright has copied his idea and that it holds a substantial degree of similarity with the original character.
- Such an infringer must not have only copied the idea but also the way of expression, as copyright does not protect ideas but the creative way of expression.
- If the idea and the expression are so imminently mixed that they cannot be separated, then the doctrine of merger applies to such an artistic work, and such an artistic work cannot be given copyright protection.
- The copyrighted fictional character is taken as a whole; it is not severable.
- Fictional characters that are ordinary and well known to the public are not copyrightable. E.g., Mahabharata characters. This doctrine is referred to as Scenes-a-faire.
Copyright protection of fictional characters in USA
Copyright law has developed exponentially in the United States of America. It is the only country to lay down a two-fold test in order to establish a proper structure in copyright law. In order to get a copyright over the literary, dramatic, or artistic work of the author, it must be substantiated that such artistic work is original and is a work of art and creativity, as mere ideas are not protected under the Copyright Law. It must be in furtherance of the expression of such an idea of creativity.
In the USA, copyright is not mentioned expressly in the US Copyright Statute of 1976, but it is provided under common law practice. In earlier times, fictional characters were protected as a part of larger copyright works, but nowadays, protection of fictional characters is given individually to the author. In the case of Nichols v. Universal Pictures (1930), the American Court laid down the two fold test for the determination of fictional characters copyright.
- Well-delineated test
In this test, the American Court laid down that for a fictional character to be given copyright status, it must be a very well-delineated and unique character. It should not be in the image of a general stereotype of personality. E.g. There is one Sharma ji in every movie with a topper kid. Such a character cannot be given copyright. To be qualified as a copyrighted fictional character, it must meet three-fold criteria:
- The character must have some physical features that are individual and distinctive to the character.
- It must be well-delineated i.e., it must be a well developed character, and the unique features of such a character must be proved time and again in the movie. E.g., Shaktiman has a good personality with his chakra powers.
- Such a character must be ‘distinct’ and possess very unique characteristics.
- Story being told test
This test establishes the rule that if the fictional character is the main protagonist or antagonist of the story and the whole story revolves around the fictional character, then such a character is copyrightable. But if such a story is being narrated by such a character, then such a character does not qualify for the copyrightability test.
Apart from copyright protection in India, another tool for the protection of fictional characters is Trademark law. Under Trademark law, a fictional character can be given the status of ‘character merchandise’. It can now be given protection under Trademark law by licensing the use of such Fictional characters as trademarks. This recourse took place in the case of Star India Private Limited vs. Leo Burnett (India) Private Ltd., 2003 Bombay High Court.
In this case, it was held that in order to get trademark protection for a fictional character, such a character must have high recognition value in the public domain. However, the fictional character in this case had not attained such public recognition. Hence, the protection of the plaintiff’s fictional character was denied in this case.
Although in India there is a lack of a separate and well-defined law of copyright for fictional characters, such a copyright is protected under the larger umbrella of Section 13 of the Indian Copyright Act, 1957. This Section protects the original literary, artistic, musical, and dramatic works, as well as sound recordings and cinematographic films. On the matter of the protection of fictional characters, India is following judicial precedent.
In one of the cases, Raja Pocket Books v. Radha Pocket Books, 1997 DHC, The Delhi High Court categorically held that his character of ‘Nagraj’ imitates the already existing character ‘Nagesh’ and holds phonetic and morphological similarities.
In another case, Arbaaz Khan vs. NorthStar Entertainment Pvt. Ltd., 2016 Bombay High Court, the question of copyrightability of the character “Chulbul Pandey ” of the Dabangg movie was questioned. The Court concluded that this character had distinct features and had gained public recognition. Hence, it qualifies for the test of copyrightability.
Indian law does not very aggressively protect fictional characters through copyright. In India, there are several stages that a fictional character has to go through before qualifying for copyrightability. Because Indian Law covers fictional characters under the broad umbrella of original literary, artistic, musical, and dramatic works, the authors resort to alternative remedies for the protection of fictional characters under Trademark Law. But for that protection, such character must also be celebrated in the public domain.
The Courts must take quick and aggressive measures to protect the copyrightability of such fictional characters, and the authors must be aware that their work of art must be:
- Well- delineated
- Unique and attributable
- Expressed creatively
- Must have a registered copyright.
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