A copyright is a form of intellectual property right. Intellectual property rights are given to unique and original creations and innovations. These rights assure the creator the ownership of the creation( tangible/ intangible) and they protect it from being copied or reproduced without prior permission. This is because such a creation has a commercial value. Hence, Copyright is one of the various IPRs, which is given for the expression of an idea. In other words, it can be understood that Copyright is given to literary works, artistic work, performing arts, film scripts, cinematography, etc. From time immemorial, fictional characters have been an essential part of the aforesaid works. Thus, many times authors demand to get IPR on their characters as well.
WHAT IS A FICTIONAL CHARACTER
A fictional character is a fictitious person depicted or represented in a work of fiction, such as a film, play, or tale. WIPO recognizes the following sources of fictitious characters:
1) works of literature
2) works of art
3) Cartoon strips
4) Films of a cinematographic nature.
In the case of cinematic films, the characters may be taken from literary works or strip cartoons from where they originated, such as Superman. In general, fictional characters are identified by basic personality traits such as their image, name, look, or voice.
FICTIONAL CHARACTER BEING AN IP
From a basic understanding of IPRs, one can derive that anything created/innovated by someone which is unique, exclusive, original, and has an economic value( can be sold/ purchased) comes under the ambit of IPR. In furtherance, it can be understood that any fictional character in a story, comic, or even an artistic work (Mona Lisa or the headless horse) that offers people entertainment, is a creation for which people shall pay. Moreover, with fictional characters who are well recognized and identified or become synonymous with the creator, films gain immense commercial value. For instance, the character of Micky Mouse and Donald Duck are synonymous with Walt Disney. all the characters are a work of fiction and are a product of an author’s creativity.
When a fictional character becomes extremely famous and develops a mass appeal, this fictional character can be used to sell anything and everything. Also because of their unique potential to serve as entertainment and expressive purposes, as well as advertising, promotional, and recognition functions, fictional characters are often employed in character merchandising. As a result, protecting fictitious characters is essential.
COPYRIGHTING REGIME IN INDIA
India has its Copyright legislation in place and it also follows the international statutes of WIPO and the Berne Convention. Section 13 of the Copyright Act of 1957 specifies the works that can be protected by copyright, including original literary, dramatic, and artistic works, cinematographic films, and sound recordings. In India or anyplace else, there is no sui generis statute or provision that protects fictitious characters. Authors can utilize 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. In other words, one can say that the idea of a superhero saving the world with his superpowers along with living like a normal human, under disguise wouldn’t be protected.
However, its various expressions in the form of variations in identification, characteristics, attributes, appearance, etc shall be protected. For example, the idea of a Happy go lucky girl who doesn’t care about the world and wishes to fulfil her dream is just an idea. This idea can be expressed in the form of the character Geet from Jab We Met and also Shruti from Band Bajaa Baraat. The take of courts in India on the mechanism of copyrighting fictional characters hasn’t been concrete as yet.
The plaintiff in the case of, Star India v. Leo Burnett claimed that the characters from their program Kyunki Saas Bhi Kabhi Bahu Thi were utilized as the basis for the detergent campaign under the name TIDE, resulting in copyright infringement of the characters. In this case, the court held that copyright existed in fictitious characters and did not go into the issue of copyright-ability if the characters could recognize the threshold.
Similarly, in Raja Pocket Books v. Radha Pocket Books, the plaintiff claimed that the defendant’s character Nagesh was similar to the character Nagraj in his comic book Nagraj. The court issued an injunction prohibiting the defendant from publishing the Nagesh comic series. While reasoning, the court skipped the question of whether the characters are copyrighted and instead focused on whether infringement occurred through a comparative study of the two characters. The court assumed that imaginary characters have copyright.
It can be summarised that Copyright as an IPR protects the expression of literature and artistic works in India and offers a set of safeguards to the owner. Fictional stories and their characters being a work of literary expression also come under this ambit. However, when the fictional character develops an identity and value of its own, which is independent of the story, it also becomes another work of creating IP. For instance, the character of Batman is so famous that irrespective of the Comic strip, this fictional character is used to make other expressions of cinema ( i.e., Batman vs Joker, ). Thus, such organic creations of IP must be given their due credit and be recognized under competent law. In certain cases, and jurisdictions these characters are also protected under the IP of Trademark and Designs. Hence, to end this ambiguity, it is necessary to classify fictional characters as a separate IP.
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.
Symbiosis Law School, Hyderabad