The scope of what can be protected by copyright law has grown and evolved significantly over time. In addition to a movie or a book, imaginary characters that are part of a creative work are now covered by copyright law. A fictional character is a made-up person developed as part of a creative production, such as a play, film, or work of literature. A fictional character is often shown physically, by an actor, or in the form of a word portrait with full descriptions of all of the character’s traits. For instance, Sherlock Holmes, Batman, and Tom and Jerry.
Copyright-ability of fictional characters
Authors can utilise copyright protection to regulate the usage and commercialization of the characters they create. According to the Berne Convention, ideas are not copyrightable, but only their expression is. The copyright protection for fictional characters allows authors to obtain their creative work’s rewards, influence the evolution of their characters in resultant works, and prevent others from exploiting their protected creation, the fictional characters. However, the premise behind this idea of copyright protection for fictitious characters is that a fictional character merits copyright protection independent from the original work in which the character first appears.
Current laws on this subject
Only the United States has developed numerous standards for determining whether fictional characters are copyright protected. To be protected in the United States, a fictional figure must be original work, have creative components linked with it, and be shown in physical media.
There are no laws in India that expressly protect fictional characters at the present. Section 13 of the Copyright Act of 1957 addresses the protection of original literary, artistic, musical, and dramatic works, as well as sound recordings and cinematography films. The protection of fictional characters may fall under the ambit of this provision. However, Indian courts have issued a number of judgments concerning the copyrightability of fictional characters throughout the years.
Various tests to determine copyright-ability
Several methods were devised to determine if a particular character can be copyrighted or not. The “story being told” test was devised in Warner Brothers v. Columbia Broadcasting Systems, which found that if a character is not a key component of a story, it is not copyrightable, and others may use the character without violating the copyright of the story. However, it was later demonstrated that this method disqualifies the vast majority of characters from copyright protection. In DC Comics v. Towle, the plaintiff claimed that the defendant’s selling of cars resembling the Batmobile from the Batman series constituted copyright infringement. While reasoning, the court devised a three-pronged test to establish the copyrightability of fictional characters.
- “The characters must have both physical and intellectual traits;
- They must be properly defined.
- They must be particularly different and incorporate some specific components of the expression.”
As a result, Judge Learned Hand created the ‘distinct demarcation’ criteria. He remarked in Nichols v. Universal Pictures Corp. that the less defined the characters are, the less copyrighted they may be; this is the cost an author must bear for making them too unclear.
The doctrine of fair dealing: An exception to this copyright protection
Much of what is allowed or forbidden in the digital environment is predicated on the concept of “fair use,” which serves a number of purposes, including allowing the user to engage in certain activities which are appropriate and allowed.
The fair use defence is both a statutory clause of the Copyright Act and a set of judicial principles. Section 52 of the Copyright Act, of 1957, lays forth specific activities or works that cannot be regarded as a violation of copyright as they come under fair use. The United States Copyright Law stipulates various considerations in order to establish whether the activities fit within the purview of fair use; Indian courts have recognised these factors in order to assess whether an act constitutes a fair dealing as stipulated under Section 52 of the Copyright Act, 1957, or else it amounts to infringement of a Copyright.
The following are the factors:
- The aim and nature of the usage of such material must be identified, whether the work is for commercial or non-profit/educational purposes.
- The copyrighted work’s nature.
- The section utilised as a component of the entire Copyrighted work.
- The impact of such use on the market or value of the copyrighted material.
- It is not acting as a replacement for the original work.
- It is also transformational in nature, which means it adds fresh meaning and message to the original.
Landmark Indian Case laws
One of the most well-known cases regarding infringement of fictitious characters is V.T. Thomas v. Malayala Manorama, which was the first case in India to establish the copyright-ability of fictional characters. The court avoided getting into the particular requirements for fictional characters to be eligible for copyright protection. The question in this case was who owned the characters’ copyright. The court impliedly agreed that imaginary characters can be copyrighted by concluding that the characters were formed by Thomas and not in the course of employment, and so he held copyright over his work.
In Raja Pocket Books v. Radha Pocket Books, the Delhi High Court dealt with a claim of copyright infringement centred on a character ‘Nagesh’ who was believed to breach the copyright of a character ‘Nagraj’. Herein the Court did not ascertain whether the character of “Nagraj” was copyrightable but observed, “Nagraj and Nagesh having the same meaning, namely, Kingsnakes; Colour of comics is also green, functionally, they are same.
Fictional characters are protected under copyright law in India though there have been a few vague and incidental references to the particularly distinguishing standard, Indian courts have yet to expand the law beyond the broad and abstract concept of thought and expression.
While still copyright law provides the most obvious form of protection for fictional characters, the basic problem with copyright is that it has an expiry date. No matter how clever the work is, it will ultimately fall into the public domain, and the owner’s copyright rights will be extinguished. This difficulty is solved by trademarks. Trademark law provides indefinite rights. The only catch is that the mark must have a source identification in order to qualify as a trademark. This implies that the mark must be capable of differentiating one person’s goods or services from those of others.
Author – Ketan Joshi
Co-Author – Ayush Tiwari