This article is written by Triveni Singhal who is pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho.

Introduction 

Intellectual property such as a painting, a song, a film, etc. is the product of the creative labor of a person. It demands protection just like any other property. Depending on the nature of work we have a plethora of rights like patents, trademarks, copyrights to safeguard it. In this article, we shall focus on copyright protection concerning fictional characters. 

Copyright: Nature and objectives

Copyright is an incorporeal property in nature, and thus, it gives proprietorship over the work, a right in the work erga omnes. It is a statutory right and not a common law right. 

It is a negative right whereby the owner can preclude others from doing some actions concerning the work. 

Copyright law focuses on promoting the progress of science and arts in a society along with rewarding the labor of the authors. On one hand, copyright law assures the creators and owners of works an exclusive right to their original expression, whereas, on the other hand, it encourages others to build freely upon the ideas and information conveyed by a work. 

It encompasses within itself a bevy of rights. They can be broadly classified as the exclusive economic rights, the moral rights (also called author’s special rights), and the neighboring rights. 

But is every kind of work created by anybody liable to be protected under copyright? 

The answer to the above question lies in Section 13 of the Copyright Act, 1957. According to this section, copyright subsists in the following kinds of work- 

a) An original literary, dramatic, artistic, or musical work. 

Example – novel, plays, portrait.

b) A cinematograph film. 

c) A sound recording.

Fictional Characters 

Now that we understand the different works wherein copyright subsists, our next question is what is a fictional character? 

Any person or other being in a narrative work (novel, television, film, play, etc.) is called a character. When such narration is a work of fiction, the characters are deemed to be fictional characters. The study of a character requires an analysis of its relations with all of the other characters in the work. The individual status of a character is defined through the network of oppositions (pragmatic, linguistic, proxemic) that it forms with the other characters.

Illustration- The renowned novel “The Hobbit” is a fictional tale. All characters (like Bilbo Baggins, Gandalf, Thorin Oakenshield) appearing in the story are fictional characters. 

Thus, in literature, a fictional character is a word portrait, and the physical appearance and characterization reside in the mind of the reader. 

Following on the same lines, “a part played by an actor” in a cinematograph film, TV series, or plays originated whereby a particular character was enacted by the performer. However, the fictional character in these cases also is first developed on paper through the script and the screenplay. 

Fictional characters may also be animated, also referred to as cartoon characters/graphic characters. 

Protection of fictional characters under copyright

Before diving deep into the discussion on the protection of fictional characters, the following points should be kept in mind-

1. Any work that can be expressed in writing and has been produced by the expenditure of substantial independent skill, creative labor, or judgment shall be entitled to protection.
2. The literary/artistic work must be original. Originality is limited to the expression of thought and not to the idea itself. Thus, it is not mandatory that the work must be an expression of an original idea (idea-expression dichotomy).
3. If an idea is inseparable from its expression, none of them will be protected (doctrine of merger).
4. In ascertaining whether a work is entitled to copyright protection, the work must be considered wholly and not in parts. 
5. Well-known and standard expressions of an idea residing in the public domain are not protected (Scenes-a-faire).

Regarding fictional characters, protection is granted only when the court believes beyond doubt that the characters are well delineated. 

Additionally, the personation of a fictional character must be portrayed in a copyrighted work to be entitled to protection. But ordinarily, the characters in a fictional story exhibit their own life, that is, become independent of the story they first appeared in. This poses a major obstacle while awarding copyright protection to them.

Nichols v. Universal Pictures Corp. et al. (45 F.2d 119 (2d Cir. 1930)) (see here)

In 1930, this case formulated the “sufficiently delineated or character delineation” test to determine the question of copyright protection. This test analyzes whether a fictional character has been nurtured and developed specifically to such an extent that it suffices as a copyrightable expression or is it merely the description of a character type. Thus, an intricate character will be apportioned substantial protection. 

In this case, the court had decreed in the favor of the defendant and denied copyright protection to stock characters appearing in a story.  

Warner Bros. Pictures v. Columbia Broadcasting System, 102 F. Supp. 141 (S.D. Cal. 1951) (see here)

Warner Bros. Pictures, Inc. (plaintiff) was the owner of the cinematograph film, radio, and television rights in the copyrighted work “Maltese Falcon”. They had alleged copyright infringement and unfair competition, thereby, demanding injunction and damages. “Maltese Falcon,” was a fictional tale authored by Dashiell Hammett and included the character Sam Spade who was a private detective. It was copyrighted in 1929 and published in installments. The main ground upon which the claims rested was the contention that Warner had the exclusive right to use the characters portrayed in “Maltese Falcon” and thus to create sequels to the work in the fields of motion pictures, radio, and television.

The judgment pronounced in this case is commonly regarded as the “story being told” test. It may or may not be used harmoniously with the character delineation test to determine whether the work in question deserves copyright protection. 

The court promulgated that the character Sam Spade was merely a vehicle for telling the story, rather than an essential part of the story itself, and therefore Sam Spade as a fictional character could not be protected under the copyright law. But it may be strenuous to develop a fictional character in such a way that the court does not merely view it only as a “vehicle for telling a story”. Another drawback to the test as pointed out in various cases is that the court overlooked the fact that a reader of mystery fiction may be more interested in the protagonist than in the plot.

Many courts declined to observe this judgment, suggesting that the proposed “story being told” test was dictum, and it may apply to literary characters, but was inapplicable to visual characters.

However, this test in conjunction with the character delineation test was applied to grant protection to the fictional characters James Bond and Rocky appearing in their respective cinematograph film series. 

New Line Cinema Corp. v. Russ Berrie and Co., 161 F. Supp. 2d 293 (S.D.N.Y. 2001) (see here)

We know that work must be considered as a whole while determining the question of protection under copyright law. But, this case showed a deviation from this rule. While the collection of specific traits of a character can be copyrightable, original, individual components of a character’s identity may also be protected by copyright. 

The court found that the glove worn by Freddy Krueger in the Nightmare on Elm Street films was protectable by copyright on its own. The court opined that where the main part of a character helps to identify it, that part, even when separated from the rest of the character, remains protected by copyright. 

A similar judgment was pronounced regarding the copyright protection of Batmobile. 

Arbaaz Khan Production Pvt. Ltd. v. Northstar Entertainment Pvt. Ltd. (see here)

This Indian case decided by the Bombay High Court in 2016 denied copyright protection to the character “Chulbul Pandey”.

It was alleged by the plaintiff that the Chulbul Pandey character from the Dabangg films has been infringed by the defendants in their forthcoming film ‘Sardar Gabbar Singh’. 

The plaintiff claimed that the character was unique and was described as “a corrupt but fearless police officer”. Additionally, he is said to have a troubled relationship with his stepfather and half-brother; he calls himself “Robin Hood” Pandey; he has what is described as a funny and bizarre way of dealing with rough elements, he wears aviators and has a unique style of tucking the aviators on the back of his collar in the film and so on. Thus, it was suggested by them that this is no ordinary, generic, or ‘stock’ police hero.

The court opined that where a character is developed and realized by a person entitled in law to hold copyright, there should be no difficulty in accepting that such copyright does subsist in that character and that a person or entity is entitled to it (examples given included the on-screen persona of Rocky, James Bond, Darth Vader, Obi-Wan Kenobi, etc.). 

But according to the court, it would be an exaggeration to put Chulbul Pandey on the same platform as James Bond. It was suspected that Chulbul Pandey has some distance to travel yet before he can quite get to the shaken-not-stirred gold standard.

It was stated that “ But as to the general principle that the character is unique and the portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection is something that I think I can safely accept. It would be, I think, stretching it too far to say that such a fully developed and uniquely depicted character, because it is ‘merely a character’, falls wholly outside the realm of all protection.”

Conclusion 

People may overlook the diegesis of a story, but the idiosyncrasy of a fictional character remains embedded in the reader’s imagination. This infatuation provides the accurate underlying value of a particular literary work or series. This inherent/acquired “value” in a fictional character prompts the creator to ensure that the character is safeguarded. Apart from copyrights, fictional characters may also be defended under the ambit of trademarks. 

Furthermore, there are several genres of fictional characters such as graphic characters (Goofy), literary characters (Sherlock Holmes), human (Mowgli), and non-human characters (King Kong). However, as we have seen not all characters qualify for copyright protection, and not all characters are treated equally under the law. 

Also, owing to the independent perceptible personification and a uniform interpretation of the character amongst all the readers, it is simpler to grant protection to visual characters (comic characters/cartoon characters). If a character is solely described in writing, the reader will automatically use imagination to fabricate the character in his mind. The physical and conceptual qualities of a comic book character, apparent through its visual representation, are more likely to be a unique expression (such as the famous graphic characters of Disney).

References 

• https://www.majumdarip.com/blog_post/an-introduction-to-alternate-or-fictional-character-persona-under-the-laws-of-copyright-in-india/
• https://corporate.findlaw.com/intellectual-property/protection-of-fictional-characters.html
• https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1043&context=cybaris
• https://www.copyrightuser.org/wp-content/uploads/2017/07/CU_CaseFile_21.pdf

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