Copyright law protects any unauthorized use of an original work which includes copying, duplicating, etc. At the outset, it is important to determine what would constitute as an original work which will, then be eligible for copyright protection. Any by-product that is made by the creator using his/her creativity and originality is protected by copyright law. When it comes to fictional characters, predominantly it is protected under copyrights. This article aims at exploring the intersection between fictional characters and copyright laws of India. Fictional characters mainly include a graphically represented character played by an actor, or it could also be in other forms like represented in a word format, where it is described in specific detailed manner. It is also clear from the lens of legal framework with respect to fictional characters that only those fictional characters are granted protection who have achieved public recognition independent of the works, they are featured in. Some prominent examples are James Bond, Shaktimaan, Iron Man, Hulk, etc. Interestingly, especially in India, it is decided by the courts whether a character is unique and developed enough to be granted copyright protection.
Copyright Protection
Section 13 of Copyright Act, 1957 deals with the protection of original works, that includes, literary, artistic, musical and dramatic works. The scope of this section extends to the protection of fictional characters. There are several cases delivered by the courts regarding the protection of fictional characters. The trajectory of the judgements proves how the courts have been more liberal towards the protection of the fictional characters as time passed. In 1989, the court in the case of V.T. Thomas v. Malayala Manorama*, sort of established that literary characters are entitled to copyright protection under Indian law. However, the court in this case focused on the question who owned the copyright and did not elaborate on the copyright protection of fictional characters, such as conditions under which a character could be entitled to protection. Nonetheless, the court granted the ownership of the characters developed, to the creators. This case directly showcases how there was underlying protection to the fictional characters, however, there was no codified factors to determine whether all characters are entitled to protection.
Further, in 1997, in the case of Raja Pocket Books v Radha Pocket Books†, the plaintiff (Raja Pocket Books) developed a character called “NAGRAJ” who wore a green bodysuit and a red buckle-belt. The character was famous among the readers of the comics. Subsequently, Radha Pocket books (defendant) designed a character named “NAGESH” who looked deceptively like plaintiff’s developed character “NAGRAJ”. Moreover, both the fictional characters possessed the same fictional powers. The court, did a comparative analysis of the two characters and observed there has been a copyright infringement. The court in this case established that the fictional character “NAGRAJ” is copyrightable, however, failed to offer a test to determine copyright-ability.
It was in 2003, when a test was applied by the court in the case of Star India Pvt. Ltd. v. Leo Burnett (India) Pvt. Ltd. The case dealt with using characters of TV show Kyunki Saas Bhi Kabhi Bahu Thi for a Tide detergent commercial and whether this violated copyright of the creators who developed these characters. The court points out how the defendant (Leo Burnett Pvt. Ltd.) has been misappropriately trading upon the TV show’s characters using their fictional identities in the commercial. The test that was laid upon by the court was “state of mind of public”. The court observed that, “the characters to be merchandised must have gained some public recognition, that is, achieved, a form of independent life and public recognition for itself independently of the original product or independently of the milieu /area in which it appears.” Following this particular test, the court goes on further, to say that “there is no material on record to show that any character in the serial has become a commodity in its own right, independently of the film/serial.” Therefore, the case went in favour of the defendants.
Furthermore, in the case of Arbaaz Khan Production Private Limited v Northstar Entertainment Private Limited and Ors.§, the plaintiff contended that the portrayal of the character of police officer in the defendant’s film is deceptively similar to the character of police officer in the plaintiff’s film. The court did not hold that the character of the defendant is infringing plaintiff’s character laying down certain distinctions between the two characters. However, the court still held that the character of the plaintiff’s film is entitled to copyright protection. The judge stated, “as to the general principle that the character is unique and portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection is something I can safely accept. It would be 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.” This clarifies the court’s stance that if a character is unique and distinct enough, it is entitled to protection.
Our observations:
While the courts have analysed the protection of the fictional characters, it would be essential to establish a few substantial tests or put forward certain factors or conditions fulfilling which fictional characters become entitled to copyright protection. Given the growth of OTT in the last few years and the growth that the entertainment industry is witnessing, it is becoming evident that the Indian courts expeditiously establish a well-grounded legal framework for the protection of fictional characters.
* 1 AIR 1989 Ker 49
† 2 1997 (40) DRJ 791 2016
§ SCC OnLine Bom 1812