First of all, let’s understand what copyright is.
The term “Copyright” describes a person’s legal right to intellectual property. The basic definition of copyright is the right to copy. The only people who have the sole right to reproduce a work are the original authors of that work and anybody to whom they grant permission. Copyright law gives original content producers the exclusive right to further use and replicate that work for a certain period, after which the copyrighted object becomes public domain. According to Section 14 of the Copyright Act 1957, A copyright is a kind of intellectual property that allows the owner an exclusive right to copy, distribute, modify, exhibit, and perform creative work for a specific period of time. The creative work might be literary, artistic, musical, or educational. The purpose of copyright is to safeguard a creative work’s original representation of an idea, not the concept itself.
What is a Fictional Character?
The fictional characters who appear in a work of fiction, a book, a movie, or a play are generally created. A fictional character is an imaginary person. For a fictional character to be believable, it must have traits that differentiate it from real people. To create a fictional character, an author typically invents a name and specifies personal characteristics such as gender, physical traits, family relations, occupation, and origin. Fictional characters can be persons, animals, objects, or imaginary places.
Some examples of fictional characters:
- “Sherlock Holmes” is probably the most well-known fictional character who plays the role of a detective and was created by Arthur Conan Doyle.
- “Captain America”, Iron Man, Hulk, Iron Man, and Doctor Strange are some of the most iconic fictional characters from Marvel Comics.
- Then there is “Frodo Baggins”, the main character from the “The Lord of the Rings Trilogy” movies, which are very popular.
- Furthermore, Mario is also a fictional character from the video game Super Mario Bros.
Classification of Characters:
There are Pure characters, Cartoon characters, Visual characters, and Literary characters. Among these categories, cartoon characters receive more protection than literary characters, and pure characters receive much less or no protection.
Copyright protection for a fictional character.
According to Section 13 of the Copyright Act, of 1957 Copyright subsists only in certain classes of works:
- a) Original literary, dramatic, musical, and artistic works,
- b) Sound recordings,
- c) Cinematographic Films, and
- d) Engravings.
Due to the lack of laws in India specifically addressing the issue, the protection of fictional characters may fall under the purview of this section. Such protections, however, may not be entirely adequate due to the possibility that the character will continue to acquire new characteristics with each new book or performance. In India, a few judicial precedents protect the rights to a novel and, if possible, unique fictional characters. Real or fictional, human or non-human, natural or mythic, such characters can exist. The legal components of a fictional character include its name, appearance, personality traits, voice, and actions. Work must be original in order to be protected under the Copyright Act. It is important to consider the circumstances in which a fictional character appears to prove that it is not original and instead an infringement. The characters should be compared to the originals to determine whether they are infringing. Also, check for similarities between the characters one by one to see if any significant parts are duplicated. To qualify for protection, a fictional character’s representation must appear in a copyrighted work. Unlike real-life characters, fictional characters lead their own lives, becoming independent of the story in which they first appeared. Therefore, they face a significant challenge in obtaining copyright.
Case Laws related to copyright infringement:
- Raja Pocket Books V/s. Radha Pocket Books, 1997 (40) DRJ 791
This case was brought by the plaintiff to obtain a declaration and permanent injunction to prevent the defendant from using the name and character “NAGESH,” which resembled the plaintiff’s character “NAGRAJ” deceptively and whose depiction was substantially similar. The defendant published a book titled “NAGESH” in which the main character had a similar appearance to “NAGRAJ,” and the characters’ concepts and meanings, as well as their colors, outfits, and special abilities, were identical. This case was filed for the infringement and passing off of the character ‘NAGRAJ’. The Hon’ble Court ruled in favor of the plaintiff stating that the idea and origin of the two characters are the same. As the viewers were younger, there was a possibility of confusion between the two characters. The defendant was liable under section 55 of the Copyright Act 1957.
- Star India Private Limited vs. Leo Burnett (India) Private Limited 2003(2) BomCR655, 2003(105(2)) BOMLR28, 2003(27) PTC81(Bom)
The plaintiffs and Balaji Telefilms Private Ltd. entered into a contract on April 9, 2000, to create, compose, and produce a television serial with the title “KYUN KI SAAS BHI KABHI BAHU THI.” Following Section 17 of the Copyright Act, the plaintiffs are the first copyright owners as Balaji produced the serial’s episodes, and their services were retained through a service contract. However, in February 2002, the defendants created a commercial for a consumer product called “TIDE DETERGENT”, promoting and broadcasting it under the title “KYUN KI BAHU BHI KABHI SAAS BANEGI” which starred characters similar to J.D, Savita, and Tulsi from the plaintiff’s serial. After realizing this, the plaintiffs argued that there was a copyright infringement because a normal viewer would interpret the plaintiffs’ actions as endorsing the defendant’s goods. This is because the serial clearly indicates the connection between the serial’s plaintiffs and the defendant’s product. With references to previous judgments, the case was ruled in favor of the defendants. The Court ruled that there was no copyright infringement in this case because the defendants created a new film rather than copying the original. In its decision, the Court interpreted Sections 14(a), (b), (c), and (d)(1) collectively establishing that the author has sole authority to duplicate a cinematograph film for physical distribution. However, in this case, creating a television commercial was an independent act. Therefore, the defendants are not liable for infringement of the plaintiff’s copyright in its film.
Based on the above-mentioned cases, it is sometimes difficult to prove copyright infringement. The legal protection for fictional characters is limited, uncertain, and inconsistent. Not all characters are eligible for copyright protection, and the law does not treat them equally. Although fictional characters are protected by the courts, there are still people who misuse them. It is important to obtain a license from a copyright owner to avoid any negative consequences. Characters from movies, novels, and comic books, have all become a part of our daily lives and we feel connected to them. Such characteristics also increase the value of the product. As a result, the owner of a copyrighted work should be fairly paid. As the entertainment and literary sectors grow, there is a possibility that more people may violate the rights of the copyright owner. Therefore, Indian courts can introduce specific statutory provisions regarding the infringement of fictional characters under the Copyright Act of 1957 in order to make more stringent laws relating to the protection of fictional characters. Besides copyright, fictional characters can also be protected by trademarks.
Author(s) Name: Simran Chaudhari (Mumbai University)