Do Fictional Characters Have Copyright Protection?

A fictional character is a make-believe individual depicted in work of fiction such as Spiderman, Harry Potter might as well be Santa Claus, basically imaginative creations that exist solely in fiction. These characters have become a part of global consciousness and to preserve the integrity copyright protection becomes paramount.

Fictional characters encompass a wide range of depictions, such as graphic characters like Mickey Mouse, literary characters like James Bond, fictional alter-ego personas like Charlie Chaplin, human fictional characters like Tarzan, and non-human fictional characters like Lion King.

The Copyright Act

Copyright protection begins at the very moment a work is created and expressed in some tangible form. Mere ideas without any tangible expression are not granted legal protection, according to the Berne Convention. However, for a fictional character to qualify for copyright protection:

It must be original
It must be in tangible form
It must involve a degree of creativity by the author or the creator.

Section 13 of the Copyright Act 1957 outlines the categories of works eligible for copyright protection, encompassing original literary, dramatic, and artistic creations, cinematographic films, and sound recordings. However, there is no specific legislation or provision in India, that directly safeguards fictional characters. Copyright protection offers authors the means to regulate and oversee the use and commercialization of the fictional characters they bring to life in their works.

Granting copyright protection solely to the character separating it from the work within which it was created can limit the usage of that character even within its own original work. For example, If Thor movies were copyrighted along with the fictional characters, then Loki (the brother of Thor or villain) having a separate series, releasing the same would have amounted to copyright infringement.

Indian Case Laws

In the case of RG Anand v. M/S. Delux Films & Others, it was established that infringement occurs only when a clear resemblance exists between the original work and the alleged copy, rendering the author unable to protect the character from being used in a similar manner.

India does not have specific laws to protect fictional characters. However, several judgments have been delivered by the Indian courts. In the case of Star India Private Limited v. Leo Burnett, the unauthorized utilization of characters from the popular Hindi soap opera “Kyunki Saas Bhi Kabhi Bahu Thi” in a detergent advertisement was deemed a copyright infringement. The argument put forth was that the characters in the soap opera were protected by copyright, and their creators had not given consent for their use in the advertisement. It is worth noting that the court solely examined the existence of copyright on the fictional characters in question, rather than delving into the prerequisites required to protect a character under copyright laws.

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.”

The US Perspective

US Courts have established “Story being told” and “Especially distinctive test” which is also known as the “Character delineation test” to determine whether a fictional character merits copyright protection.

In the case of Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc, it was established that literary characters can be eligible for copyright protection if they are an integral part of the story being narrated. However, if the character merely serves as a tool to tell the story and lacks substantial individual significance, copyright protection may not apply. In this specific case, Dashiell Hammett, the author of “The Maltese Falcon,” retained the right to reuse his characters, including detective Sam Spade, despite selling the story. The court argued that it was a common practice for detective fiction writers to carry their leading characters with their distinctive traits from one story to another.

According to the Character Delineation Test, a character can be copyrighted only if it possesses distinctive features that set it apart from generic or stock characters. This test is inclusive of three steps:

the character must have specific physical and personality traits unique to them
these attributes should be recognizable across different contexts
the character must exhibit consistent and distinctive elements throughout the narrative

Conclusion

To safeguard the uniqueness of these fictional characters, copyright protection becomes crucial for creators and there is requirement of specific Indian laws or standards to protect these creative expressions.

Author: Ritul Rajvanshi, Legal Intern at PA Legal.

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