Copyright Protection for Characters
Section 13 of the Indian Copyright Act provides that copyright subsists in original literary, dramatic, musical and artistic works, cinematographic films, and sound recordings. It does not expressly provide protection for characters that are created in these works, and subsequently developed secondary characteristics due to their roles in the works that they were created in. Courts, however, seem to have accepted that the copyright protection that is afforded to the work extends to the characters created as well.
Indian judicial precedents have allowed protection to new, original, novel and unique fictional characters under the laws of Copyright. Such characters may be real or fictional, human or non-human, natural or mythical. A fictional character may comprise of several legal components which may include its name, its appearance, the manner in which the character carries itself, personality traits, voice, any unique article associated with such character. Prominent examples of characters include Superman, Sherlock Homes, Tarzan and the like.
Relevant Case Laws
The first case in India which dealt with character rights protection was the Kerala High Court case of Malayala Manorama v. V T Thomas where a publishing house was prevented from claiming ownership over the characters created by the cartoonist before joining the publishing house. This is because the characters had been created by V T Thomas before joining Malayala Manorama and the publishing house had no role in the creation of the characters Boban and Molly. It was held that Thomas retained copyright in the characters as he incorporated them in his cartoons before he entered into employment.
However, the Kerala High Court did not discuss the conditions under which a character could gain copyright protection but only decided the issue of ownership of copyright on the characters in question.
The question of copyrightability of a character was an issue in Star India Private Limited vs. Leo Burnett. In this case, the Plaintiffs who were producers of a television serial called ‘Kyun Ki Saas Bhi Kabhi Bahu Thi” sought to restrain a subsequently telecasted commercial tiled “Kyun Ki Bahu Bhi Kabhi Saas Banegi” portraying a character similar to the Plaintiff’s television serial. The Hon’ble Court after considering materials on record refused to grant relief to the Plaintiff and observed, “The characters to be merchandised must have gained some public recognition, that is, achieved a form of an independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears.”
In 2010, the Delhi High Court in Raja Pocket Books v. Radha Pocket Books dealt with a claim of copyright infringement that centred around a character ‘Nagesh’ that was said to infringe the copyright of a character ‘Nagraj’. Herein the Court did not ascertain whether the character of “Nagraj” was copyrightable but observed, “Nagraj and Nagesh having the same meaning, namely, Kingsnakes; Colour of comics is also green, gauntlets are ripped in both cases, functionally, both are capable of doing same and similar work, namely, scaling the walls and the roofs alike, hurling snakes, causing the objects to melt and the snakes capable of returning back and merging in the body of the character. For the purpose of climbing, both use the same material, namely, rope in the form of a snake.” Accordingly, relief was allowed to the Plaintiff.
The question of character copyright was again dealt in Arbaaz Khan vs. NorthStar Entertainment Private Limited here; the Plaintiff argued that the portrayal of the police personnel in the Defendant’s movie was an imitation of the Plaintiff’s character of “Chulbul Pandey” from the “Dabangg” franchise. The Hon’ble Court did observe that the Plaintiff’s character was entitled to copyright holding that, “It would be, I think, stretching it too far to say that such a fully developed and uniquely depicted character because it is ‘merely a character’, falls wholly outside the realm of all protection.”
Laying Down Limitations
While Indian Courts are yet to lay down the conditions for a fictional character to qualify for copyright protection, American Courts have formulated a few tests that are currently in use such as the Character Delineation test, Story Being Told Test, and the Especially Distinctive Test.
In the case of D.C. v. Towle, the Court while applying the Especially Distinctive Test came up with three conditions that need to be satisfied to provide protection to a character:
- The character must generally have ‘physical as well as conceptual qualities.
- The character must be “sufficiently delineated” to be recognizable as the same character whenever it appears…Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.”
- The character must be “especially distinctive” and “contain some unique elements of expression. Even when a character lacks sentient attributes and does not speak like a car, it can be a protectable character if it meets this standard.
Author: Neha Uppin, Legal Intern at PA Legal.
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