COPYRIGHT PROTECTION FOR FICTIONAL CHARACTERS

-Written By Khushi Sheikh

1. Introduction

Intellectual Property Law safeguards the manifestation of ideas, shielding literary and artistic creations, designs, symbols, inventions, and discoveries. It encompasses various mechanisms like trademarks, patents, designs, trade secrets, and copyright, each serving distinct purposes in preserving the rights of creators.

Copyright stands out as an intangible right within intellectual property, shielding literary, dramatic, artistic, and musical works. These domains frequently involve imaginative endeavors, leading to the recurring creation of fictional characters. Such characters, born from poetic ingenuity, are aptly termed fictional characters.

2. Copyright protection for fictional character : meaning and scope

Copyright safeguards the innovative endeavors of creators, encompassing literary, dramatic, artistic, and musical works. Beyond merely shielding films or shows, copyright extends its protection to the imaginative characters crafted within the author's creative landscape. These characters, often referred to as fictional characters, find embodiment in iconic figures like Tanjiro and Rengoku from the Demon Slayer anime series, as well as Captain America and Iron Man within the Marvel series.

3. Procedure for obtaining a fictional character copyright

Securing copyright protection for a fictional character involves a systematic process:

1. Uniqueness Requirement:

To qualify for copyright, the fictional character must possess a distinctive quality specific to the author or creator. This uniqueness is fundamental in establishing eligibility.

2. Expressive Medium:

The character should be articulated in a tangible form, such as literary works or various dramatic formats like short films, YouTube videos, movies, or musical compositions. Mere conceptualization in one's thoughts doesn't meet the threshold.

3. Eligibility Test:

Once uniqueness and expressive criteria are met, the author proceeds to the application phase. This involves the submission of a copyright registration application, with filing fees varying across jurisdictions.

4. Detailed Submission:

Accompanying the copyright application is a comprehensive submission detailing the specifics of the fictional character. This document serves as a tangible representation of the character and supports the registration process.

Upon successful registration, the author gains exclusive rights over the fictional character, enabling them to protect or license it at their discretion. Legal provisions offer remedies in case of any infringement, reinforcing the author's authority over their creative creation.

4. Misappropriation of fictional characters

Misappropriation of fictional characters entails a third party attempting to exploit the creative efforts of the original author through unauthorized use, copying, or subtle alterations of the original artistic work.

This unauthorized party seeks an unjust advantage by replicating a version substantially similar to the original work, capitalizing on the goodwill established by the original author.

In the context of Indian Courts, while they generally exhibit a lenient stance toward fictional character protection, establishing a well-defined character presents a formidable challenge. To shield against misappropriation, an author must meticulously demonstrate the authenticity of their work and establish the crucial element of 'substantial similarity' between their creation and the infringing work. This demanding burden of proof underscores the complexities inherent in safeguarding fictional characters from undue exploitation in the Indian legal landscape.

5. Remedies for misappropriation

For robust protection against misappropriation, specific prerequisites must be met:

1. Copyrightable Character:

The fictional character must be inherently copyrightable, exhibiting clear delineation, uniqueness, and unmistakable distinctiveness.

2. Integral Role in the Narrative:

The show, movie, or artistic work must intricately weave the storyline around these fictional characters, emphasizing their central role.

3. Authorship Assertion:

The author must assert their role as the character's creator, substantiating that the character is an original creation absent in prior works of art.

4. Proof of Copying and Substantial Similarity:

The author must demonstrate that the alleged infringer not only copied the idea but also achieved a significant resemblance to the original character in terms of expression.

5. Expression vs. Idea Distinction:

Copyright protection extends to the creative expression, not mere ideas. It is crucial to establish that the infringer replicated not only the idea but also the distinctive mode of expression.

6. Doctrine of Merger:

If the idea and expression are so intertwined that separation is impossible, the doctrine of merger applies, rendering the artistic work ineligible for copyright protection.

7. Holistic Protection:

Copyright protection for fictional characters is holistic; it cannot be divided or severed into distinct elements.

8. Ordinary and Well-Known Characters:

Characters that are commonplace or widely recognized by the public, such as those from the Mahabharata, fall outside copyright protection. This principle, known as Scenes-a-faire, exempts characters with widespread familiarity from copyright eligibility.

6. Copyright protection of fictional characters in USA

The evolution of copyright law in the United States has been remarkable, uniquely marked by a two-fold test essential for establishing a robust legal framework. To secure copyright for literary, dramatic, or artistic works, it is imperative to establish both the originality and creative expression of the work, as copyright protection doesn't extend to mere ideas but requires tangible manifestation.

While the U.S. Copyright Statute of 1976 doesn't explicitly mention copyright, its provision is rooted in common law practice. Traditionally, fictional characters were safeguarded within larger copyright works, but contemporary practice grants individual protection to authors. In the landmark Nichols v. Universal Pictures (1930) case[1], the U.S. court introduced a two-fold test for determining fictional character copyright.

Well-delineated Test:

The court emphasized that a copyrighted fictional character must be distinctly unique, avoiding the trap of being a generic stereotype. Characters like the ubiquitous "Sharma ji" with a high-achieving child lack copyright protection. To qualify, a character must exhibit distinctive physical features, be well-developed, and possess unique and consistent characteristics, as seen in the example of Shaktiman.

Story Being Told Test:

This criterion dictates that if a fictional character is the central figure in a story, serving as the protagonist or antagonist around whom the narrative revolves, it qualifies for copyright protection. However, a character merely narrating a story doesn't meet this threshold.

In addition to copyright protection in India, trademark law serves as an alternative tool for safeguarding fictional characters. The case of Star India Private Limited vs. Leo Burnett (India) Private Ltd. [2](2003, Bombay High Court) demonstrated that to gain trademark protection, a fictional character must possess high recognition in the public domain. Unfortunately, if such recognition is lacking, as in the mentioned case, the protection for the plaintiff's fictional character was denied.

7. Copyrightability Of Fictional Characters: Is It Protected In India?

In the realm of Indian intellectual property law, the safeguarding of fictional characters encounters a nuanced landscape, primarily governed by the Copyright Act of 1957. Despite the absence of explicit statutory provisions dedicated to fictional characters, Section 13 of the Copyright Act serves as the overarching legal framework, extending protection to original literary, artistic, dramatic, and musical works, as well as films and sound recordings.

An illustrative case that reflects the Indian judicial approach is Malayala Manorama vs. VT Thomas[3]. This landmark case, heard by the Kerala High Court, laid a foundation for acknowledging copyright ownership of fictional characters. Remarkably, Mr. Thomas, not employed by Toms Boban and Molly, retained copyright over characters he had independently created. The court, in differentiating between characters conceived independently and those tied to episodes created during employment, underscored the importance of recognizing the creator's rights.

In the case of Star India Pvt. Ltd v. Leo Burnett[4], the court addressed copyright infringement stemming from the unauthorized use of characters from the Hindi opera "Kyunki Saas Bhi Kabhi Bahu Thi" in a detergent commercial. This instance reaffirmed the courts' recognition of the copyright protection inherent in characters from popular soap operas.

Similarly, the Delhi High Court, in Sholay Media and Entertainment Pvt Ltd. vs. Parag Sanghvi and Ors.,[5] took a stringent stance by imposing fines for the intentional filming of a remake of the iconic film "Sholay," thereby violating exclusive copyrights.

The Bombay High Court, in the case of Arbaaz Khan vs. North Star Entertainment Pvt. Ltd.,[6] explored the notion of copyright subsistence in the character "Chulbul Pandey" from the Dabangg movie franchise. The court articulated a general principle affirming the protection of unique characters and their portrayal in underlying literary works.

While explicit recognition of fictional character protection is yet to be codified in Indian law, these cases collectively suggest a growing judicial awareness of their copyrightability. The evolving landscape of the entertainment and literary industry, coupled with technological advancements, may pave the way for Indian courts to formulate tests akin to those employed by their American counterparts, thereby delineating specific conditions for copyright protection of fictional characters. The dynamic nature of technology is expected to further propel the expansion of copyright law into uncharted territories.

8.Conclusion

In conclusively assessing the Indian legal landscape, it becomes apparent that the explicit recognition of protection for fictional characters is yet to be embraced by Indian courts. Notably, no specific laws or standardized tests have been established to address this intricate matter within the purview of copyright law.

However, amid the current economic surge, a discernible trend unfolds within the entertainment and literary industry. This sector is experiencing an accelerated growth trajectory, a phenomenon that is anticipated to persist and burgeon in the future. In light of this dynamic evolution, it is plausible that Indian courts will, in due course, formulate comprehensive tests. These tests are expected to delineate the requisite conditions for granting copyright protection to fictional characters, drawing inspiration and alignment from the established tests articulated by American courts.

The foreseeable future holds promise for the development of nuanced legal frameworks that aptly address the intricacies surrounding fictional character protection. This evolution is likely to mirror the trajectory witnessed in advanced economies, where courts have refined their approach to accommodate the evolving dynamics of the creative industries.

Moreover, as technology continues to advance at an unprecedented pace, the realm of copyright law is poised for expansion into uncharted territories. Much like the emergence of the copyright conundrum itself, these undiscovered fields beckon legal scholars and practitioners to navigate novel challenges. The synergy of technological progress and legal evolution is expected to shape the contours of copyright law, extending its reach into hitherto unexplored realms and ushering in a new era of legal discourse and protection.