The intersection between copyright law and fictional characters

Copyright law plays a vital role in protecting a creative work from unauthorized use, copying or duplication by a third party. Any work that can be tangibly represented, is novel, and a by-product of a person's creativity can be considered a creative work that can be copyrighted. Over the years, the scope of what can be protected with the help of copyright law has expanded and evolved to a great extent. Today, copyright law not only protects a movie or a piece of literature, but it also protects the fictional characters that are components of the creative work. A fictional character refers to an imaginary person that is developed as a part of a creative work that may include but is not restricted to a play, movie, or a piece of literature. Typically, a fictional character may be graphically represented, played by an actor, or could be represented in the form of a word portrait wherein various characteristics pertaining to the fictional character are described in detail. Copyright laws worldwide have recognized that fictional characters exist as a creative work, separate from the work it originates from (which may include a movie or a piece of literature). Some of the most prominent examples of protected fictional characters include Arthur Conan Doyle's Sherlock Holmes, Herge's Tintin, King Kong, Lion King, Batman, Superman, Walt Disney's Mickey and Mini Mouse and Donald Duck.

Copyright law for the protection of fictional characters in the USA

United States is the only country that has laid down multiple tests to determine the copyrightability of fictional characters. In order to protect a fictional character in the US, the character must be an original work, must have an element of creativity linked to it, and must be represented in a tangible medium. Furthermore, American Courts have established a two-step test that would help determine if a fictional character has been infringed upon. According to this test, it must be established that the character in question is subject to copyright protection. Once this is established, it should be elucidated that there has been an infringement of this fictional character which is a "unique piece of expression". The infringement of a copyrighted fictional character is decided by determining the overlapping of similarities between the original work and the infringing work. The Court would examine substantial similarities that exist between the two works to determine if the work has been infringed upon. Such similarities may include examining the appearance, personality traits, character sketch and word portraits of the original work and the infringing work. The following are some tests devised by American Courts to determine if a fictional character is eligible for copyright protection:

Story being told test

The United States Court of Appeals for the Ninth Circuit is accredited for establishing the 'story being told test', which was first applied in Warner Bros v. Columbia Broadcast System.  According to this test, a fictional character is copyrightable only if it "constitutes the story being told". This means that the fictional character must play a vital and a central role in the narrative rather than being a character that would only carry the story forward. The test is also called the 'Sam spade test', wherein copyright protection is not granted to a character that does not play a critical role in the narrative of a creative work.

Graphical and word portrait characters

According to this test, copyright protection may be granted to characters that are depicted in the form of word portraits or are represented graphically. This means that the character must consist of personality traits and visual additions that are not generic in nature. This way, the character would not be classified as a 'stock character' and would enjoy copyright protection.

Well-delineated test

The well-delineated test is one of the most notable tests used in American Courts to determine the copyrightability of a fictional character. According to this test, a character is copyrightable only if it is sufficiently delineated. This implies that the character must be developed enough with various characteristics that would set it apart from stock characters. Typically, a three-step test is applied to determine if a character is well delineated. Firstly, the character must consist of physical and personality attributes that are specific to the fictional character in question. Secondly, the character must possess attributes that are identifiable in different contexts. Thirdly, the character must possess some unique elements of expression that must be represented consistently throughout the narrative. Hence, if a fictional character sails through the three-step test, it may enjoy copyright protection.

Copyright protection of fictional characters in India

Currently, India does not have laws that are specific to protecting fictional characters. However, section 13 of the Copyright Act, 1957 deals with the protection of original literary, artistic, musical and dramatic works, as well as sound recordings and cinematography films. The scope of this section may also extend to the protection of fictional characters. However, over the years, several judgments pertaining to the copyrightability of fictional characters has been delivered by Indian Courts. For instance, in Malayala Manorama v. VT Thomas, the Kerala High Court adjudicated that the defendant was the owner of the copyright that subsisted on a set of fictional characters that were created during his course of employment. Furthermore, in Star India v. Leo Burnett, the unauthorized use of the characters from the popular Hindi soap opera "Kyunki Saas Bhi Kabhi Bahu Thi" in a detergent advertisement was considered to be a case of copyright infringement. Here, it was argued that copyright subsisted on the characters from the soap opera and that the creators did not consent to the use of the characters in the advertisement. It is pertinent to note that in the aforementioned cases, the Court has only analyzed the copyright that subsists on a fictional character and not the pre-requisite conditions that must be satisfied to protect a character with the help of copyright laws. However, the entertainment and literary industry is developing at an expedited rate. Thus, in the near future, Indian Courts are likely to propound tests to determine the conditions required to copyright fictional characters that are similar to the tests propounded by American courts.

Exploring Copyright Protection For Fictional Characters

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