Can you obtain a Copyright on Fictional Characters?

The commercial and widespread appeal of fictional characters quite often outshines the characters’ role within the parent work. Hence, it is necessary to ensure that the creators of these characters are accorded with reasonable and uniform protection from unauthorized exploitations of the characters. Not only are these characters at a high risk of distortion and misuse, but also their creator’s rights and reputation are at stake. Similarly, licensees and advertisers have economic interests in the characters and express the need to protect them from misuse by third parties.

A fictional character has three identifiable and legally significant components: its name, its physical or visual appearance, and its physical attributes and personality traits or characterization. Furthermore, fictional characters can be classified into four types – Pure, Literary, Visual, and Cartoon. Pure characters are the ones that do not appear physically in the incorporated work. Literary characters arise from books or scripts with descriptions and actions. Visual characters are those that are visible in the works, for instance, in movies. Cartoon characters are all line drawings of a perceived simplicity. Among these four classifications, pure characters tend to receive negligible or no protection, whereas cartoon characters have been given more protection by the courts.

When does a Fictional Character Qualify for Copyright Protection?

Copyright protects distinctive expressions; however, it doesn’t protect mere ideas or themes. Courts have defined a character as an aggregation of the particular talents and traits, which his creator selects for him. When these specific abilities and qualities can be considered to be expressive features, unlike mere themes or ideas, the character can be given protection. Otherwise, the character, upon publication, becomes instantly available for public exploitation. With time, the courts have come up with detailed characteristics of copyrightable characters. One such criterion requires the characters to be ‘sufficiently delineated,’ along with ‘consistent, widely identifiable traits.’ The characters that have appeared several times, and are an integral part of the popular culture, have a greater chance of attaining protection. The same happens because the various appearances help to delineate a character’s abilities to a greater extent. It can be seen impliedly in the United States James Bond decision (M.G.M. v. American Honda Motor Co.), where it was held that the plaintiffs acquired copyright to the James Bond character under their copyright ownership of the film series.

Although an iconic status is a noteworthy aspect, it is not a precondition for protection. For instance, a character called ‘Bill’ was given protection, although it appeared only in three advertisements. His character was deliberated to be delineated adequately.

Position under the US Copyright Law and Tests Evolved

At present, the US Copyright Act grants copyright to an author if the work is original, creative, the true subject matter of copyright, and is stable in a physical medium of expression. Fictional characters are fundamentally not copyrightable as the Act states that under no circumstance can copyright protection for an original work of authorship prolong to any idea, and if a fictional character were no more than a stock character, such a character would lack the novel expressive quality required for copyright protection, separate from the work in which it appears.

Nevertheless, courts have embraced a two-stage test to regulate copyright infringement of a fictional character. This test obliges courts to decide whether or not the character’s expression is copyrightable; and, if it is, whether or not there is an infringement of this expression. Based on the previous question, two tests enumerated by United States courts are immensely popular, namely, the ‘Distinct Delineation’ test and the ‘Story Being Told’ test.

1. The ‘Distinct Delineation‘ Test

• The courts came up with this test in the case of Nichols vs. Universal Pictures Corp., where it was opined that the copyright law could guard fictional characters if they were distinctly delineated. This delineation test is a two-stage test, which at first examines whether or not the earlier character’s expression is adequately delineated to be copyrightable, and then checks whether or not the infringing character’s expression is significantly similar to that of the earlier character. If the answer is in the positive, then the court will hold that this is an infringement of not only the original character but also the entire work in which the original character is found. The concerned judge observed, “It follows that the less developed the characters are, the less they can be copyrighted; and that this is the penalty an author must bear for marking the characters too indistinctly.”

• The Distinct Delineation Test was also made applicable to accord protection for the character Tarzan, as the character was “sufficiently delineated by the author to be copyrightable.” Similarly, the character Superman was found to “embody an arrangement of incidents and literary expressions original with the author,” hence being justified in receiving copyright protection.

• Superman was introduced to the public on the cover of Action comics in 1938, which led to remarkable sales of the comic books. Realizing this, Vicor Fox, an employee working for the company, quit his job and formed a new company named Bruns Publication. He employed an art studio requesting that studio to create for him a ‘Superman’ and this led to the creation of ‘Wonderman.’ After the first sale of ‘Wonderman,’ DC Comics filed a suit of copyright infringement and focused its case on the resemblance of powers among the two characters, specifically how Wonderman was shown using them. The problem of character protection was thus presented in the case of Detective Comics, Inc. vs. Bruns Publications, Inc., and the court decided in favor of Detective Comics.
  

  -A comparison of Superman (left) and Wonderman (right)

• Furthermore, in the case of DC Comics vs. Mark Towle, the 9th Circuit Court of appeals in the US ruled that the ‘Batmobile’ is entitled to copyright protection as it is sufficiently distinctive to be protected as a work of authorship. The defendant owned a business called Gotham Garage, where he sold replicas of cars featured in movies and television shows. DC Comics sued him for copyright infringement in 2011 for selling replicas of the Batmobile from the 1960s TV show and 1989 Batman movie.

2.  The ‘Story Being‘ Told Test

• With the absence of distinct principles in the Nichols delineation test, the Ninth Circuit offered the ‘story being told’ test in the Warner Bros. case.In 1930, Dashiell Hammett traded the movie, radio, and television rights to his novel, ‘The Maltese Falcon,’ to Warner Bros. Pictures based on these three movies were made. Subsequently, Hammett entered into an agreement with the Columbia Broadcasting System (CBS) for a radio show ‘The Adventures of Sam Spade,’ in which merely the character of ‘Sam Spade’ was taken from the book. Warner sued CBS as it owned the radio broadcasting rights also. The court rejected Warner’s claim on the basis that “a character may only be protected under copyright law if the character constitutes the story being told, but if the character is the chessman in the game of telling the story, he is not within the area of the protection afforded by copyright.” The Court held that Warner Bros. reserved its exclusive rights to the book (even from the actual author), but the novelist was merely struggling to preserve his right to use his creation. It was decided that the author reserved his right to use his character in other works as long as these uses did not invade on the specific original work, which had been copyrighted to Warner Bros.
• Likewise, in the case of Universal City Studios vs. Kamar Indus, when a manufacturer started selling products with the label, ‘E.T. Phone Home,’ Universal City studios brought legal action against them. The court found that the E.T. character was a vital piece of the movie (E.T. – The Extra-Terrestrial) produced by Universal City Studios. E.T was “a unique and distinctive character about whom the movie revolves, which is copyrightable,” and thus Universal was entitled to relief.
• Hence, according to this test, the fictional character must be a crucial part of the story that is being told, and not merely a chessman in the game of telling the story.

Position in India

In India, paintings, sculptures, drawings, engravings, or photographs have been encompassed in the definition of ‘artistic works.’ However, a character is not protected; what is protected is the precise drawing of a cartoon or episode based on it. Likewise, under the definition of ‘literary works,’ the work, which is written down in words, is copyrightable. However, a character’s characteristics are not copyrightable as they remain in the imagination of the readers, and thus the entire story, which, if read in entirety, gives a hint of the character. Therefore, under the Indian statutory law, characters do not fall under the category enlisted as copyrightable in the Copyright Act. Nevertheless, the courts have still widened the domain of the expression ‘work,’ and have protected characters in various decisions.

In the case of Raja Pocket Books vs. Radha Pocket Books, the comic character Nagraj was imitated by the defendant in his comic, and was named ‘Nagesh.’ The court found that ‘the characters’ personalities were similar and both the green snakes had a serpentine-like look with red belts.” The court held that not only the idea was borrowed, but the expression was copied too. The court gave an interim injunction for the duration of the suit to prohibit the defendant from circulating stickers, posters, or any other material, endorsing the character under the name Nagesh.

The question of what makes a character capable of obtaining protection under the copyright regime was discussed in the case of Star India Pvt. Ltd vs. Leo Burnett, where the court opined, “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 the case of Sholay Media and Entertainment Pvt Ltd. vs. Parag Sanghvi and Ors, the Delhi High Court imposed a fine of Rs. 10 lacs as punitive damages on Director Ram Gopal Varma for ‘intentionally and deliberately’ coming out with the remake of the 1975 blockbuster ‘Sholay,’ by violating the exclusive copyright vested with Sholay Media and Entertainment Pvt Ltd and misusing the characters named Gabbar Singh, Jai, Veeru, Radha.

The judicial recognition of copyright, existing in literary characters, was highlighted in the case of Arbaaz Khan vs. North Star Entertainment Pvt. Ltd by the Bombay High Court. The court, while examining whether or not copyright would subsist in the character of “Chulbul Pandey” from the Dabangg movie franchise, opined that “As to the general principle that the character is unique and the portrayal of that character as also the ‘writing up’ of that character in an underlying literary work is capable of protection is acceptable.”

Infringement

Once it is recognized that a fictional character is copyrightable, the character’s creator or owner must establish a genuine infringement. He needs to show that not only has there been an overall borrowing of ideas but also copying of the way of expression. Deliberate copying is quite challenging to prove straightforwardly, in most cases, and so it is frequently concluded by indirect evidence. The major test used to regulate infringement is by equating the ‘degree of substantial similarity’ amongst the original character and the alleged infringer.

The courts have been more lenient in granting protection to those characters that have a visual impact on the minds of the readers and viewers. Protection is only granted when the court is made to believe beyond doubt that the characters are well delineated. The courts are strict about the fact that characters can obtain copyright protection only when they become an expression. Ideas cannot obtain copyright protection.

Final Thoughts

The question that still remains is – “Under which category of ‘work’ should we consider a character to be granted copyright protection?” What can be protected under ‘artistic works’ is the exact drawing of the cartoon and the episodes based on it. The features of the character remain out of this ambit. In the same way, under ‘literary works,’ what can be copyrighted is the whole story, from where the character can only be perceived by understanding it in its entirety. Under the statutory Indian law, characters do not exactly fall under any of the categories of ‘works’ enlisted in the Act to be given Copyright Protection. It is the same position in the law for the United States. Yet, the courts have suo motu taken the step to provide them with protection separately. Therefore, the creators and owners of fictional characters, whether visual, literary or cartoon, can safeguard their rights in the characters by ensuring that: