We all have seen people doing mimicry or character inspired rakhi’s being sold in stalls or people wearing costumes of famous cartoon characters like Mickey Mouse or Winnie the Pooh either at a mall or at a kids birthday party. Have we ever wondered whether they do it with permission from Disney? Do they have a license?
Well, the answer to both these questions is “NO”. This article explores the need for a provision against these small infringements being committed and the rights being exercised.
Copyright and Characters: An untold story
Copyright as defined by WIPO reads
“Copyright (or author’s right) may be a legal term to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.”. When a personality is developed a copyright should be given to them in order for them to have protection over their work which they created solely and wholly by themselves.
What does the law present?
- Under The Copyright act of 1957, The original creator of the copyright has all the rights which are with them till their lifetime plus 50 years after death, Hence if they feel their right has been infringed in any way they can approach the court for an injunction or claim damages.
- The Trademarks act 1999, According to section 28(3) a registered user can stop others from using the same trademark or a similar one since they enjoy an exclusive right over the mark now.
But these rights are copyright specified and not character specified if we take a look at The Copyright Act 1957, Section 50 throws light on the infringement aspect of a copyright which reads as “when a person , without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority does anything, or permits for profit any place to be used for the communication of the work to the general public where such communication constitutes an infringement of the copyright within the work unless he wasn’t aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or permits for profit any place to be used for the communication of the work to the general public where such communication constitutes an infringement of the copyright within the work unless he wasn’t aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright”.
On a positive side a copyright can be obtained for the characters as there are two test known as story being told test which require the character to be the main protagonist around which the story revolves and not a supporting character or character delineation test in which the character should be well developed and have some traits or a character of its own which make him unique.
Why the need?
In September 2019, Omar lulu, a south Indian movie director in his movie “DHAMAKA” used the famous character “Shaktiman” for a 10 min scene and it was posted on Facebook. On seeing this Mukesh Khanna complained with FEEKA and later the director had to apologize and give credits to Mukesh Khanna for the scene since he was the copyright holder of the same.
The court in Arbaaz Khan Production Pvt Ltd vs Northstar Entertainment Pvt Ltd noted “The thrust of the argument is that it is possible to hold copyright not just in a literary work, but in a character. I understand this to mean the belief of a persona with iconic characteristics and traits that make him or her unique. Where such an individual ality is developed and realized by a person entitled in law to carry copyright, there should be no difficulty in accepting that such copyright does subsist in that character which an individual or entity is entitled thereto . The on-screen persona of Rocky from the Rocky franchise, James Bond from the film franchise (distinct from the literary character), certain characters from the Star Wars series and the many characters in Star Trek are all possible examples. I seriously doubt, too, that anyone can make a film of a dumpling- gobbling martial arts panda bear without authorization or complaint.”
Character merchandising is a livelihood for some people. It is however unfair for the developer of the character to not get a royalty. All of the above-mentioned sections talk about one aspect which is protecting the rights of the original owner or the creator who created it. In the era where everything is available at one click protecting these rights becomes a difficult thing to achieve. In law we talk about not giving Trademarks to people whose trademark can deceive the public so why can’t this kind of proposition be imposed for characters which gain a reputation in the market. This is the reason why a law on illegality should prevail.
Final year Law Student
Law Centre II, Faculty of Law, Delhi.
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.