Intellectual Property Rights over Fictional Characters

Intellectual Property Rights over Fictional Characters

Written by BC ARYAN Student , Symbiosis Law School , Pune

aryanbc01@gmail.com

Abstract

Fictional characters frequently have a wider and more commercial appeal than their roles in the original work. As a consequence of this, it is of the utmost importance to guarantee that the creators of these characters are provided with adequate and consistent protection against unauthorized exploitation. Not exclusively are the freedoms and notoriety of their makers in danger, however these characters are additionally profoundly helpless to bending and abuse. Similarly, licensees and sponsors express the need to safeguard the characters from misuse by third parties because they have financial stakes in them.

The right to protect his or her creation is due to each maker. Copyright does not cover simple character concepts. Copyright protection is granted to the characters only when these ideas are expressed. As a result, a character with a lot of detail can get copyright protection. However, the actual classification of a person eligible for copyright security remains secret. It cannot be straightforwardly classified as scholarly or creative work. There are no explicit provisions in Indian law that could provide copyright protection to film characters, necessitating the establishment of a distinct legal classification specifically for their protection.

Introduction

Characters in fiction frequently have a greater commercial and widespread appeal than their roles in the original work. As a result, it is essential to make certain that the creators of these characters receive reasonable and uniform protection against unauthorized exploitation. Not only are the rights and reputation of their creators at risk, but these characters are also highly susceptible to distortion and misuse. Likewise, licensees and sponsors have financial interests in the characters and express the need to protect them from misuse by third parties.

There are three distinct and legally significant aspects to a fictional character: its name, physical or visual characteristics, personality traits, and characterization, as well as its physical features. In addition, there are four types of fictional characters: pure, literary, visual, and cartoon. Pure characters are the ones that don't show up truly in the consolidated work. Literary characters are created from descriptions and actions in books or scripts. Characters that are visible in the works, such as movies, are referred to as visual characters. All of the characters in cartoons are simple line drawings. Pure characters typically receive little to no protection among these four categories, whereas cartoon characters have received greater protection from the courts.

What is Intellectual property ?

Anything that an individual or business has created is considered to be intellectual property. It cannot be touched because it is intangible. It could be a piece of music, a movie, or any digital art. The creator of this kind of art needs some kind of protection or rights over intangible property because these are easy to steal. Organizations take huge measures to remember it and safeguard it since protected innovation is so exceptionally esteemed in the present information based economy. In addition, it takes a lot of time and thought to create valuable intellectual property. Businesses and individuals incur significant costs as a result, which should not be used without their consent.

To be successful, a company must be able to profit from intellectual property while preventing others from infringing. There are various assortments of protected innovation. Despite the fact that it is an immaterial resource, licensed innovation once in a while has a lot bigger worth than a business' actual resources. Intellectual property is carefully guarded by the businesses that own it because it can provide a competitive advantage.

When can a fictional character be protected by copyright?

Unique expressions are protected by copyright; However, it does not safeguard only concepts or themes. Courts have defined a character as a collection of his creator's chosen abilities and characteristics. The character can be protected if these particular abilities and characteristics are regarded as expressive features rather than merely themes or ideas. Otherwise, the character becomes immediately available for public use upon publication. With time, the courts have thought of nitty gritty attributes of copyrightable characters. Characters must be "sufficiently delineated" and have "consistent, widely identifiable traits" as one of these criteria. The characters that have seemed a few times, and are a vital piece of the mainstream society, have a more noteworthy possibility accomplishing insurance. The same is true because a character's abilities are better defined by their appearances. In the United States James Bond decision (M.G.M. v. American Honda Motor Co.), it was held that the plaintiffs acquired copyright to the James Bond character as a result of their ownership of the film series' copyright. This can be seen impliedly.

Even though having an iconic status is important, it does not guarantee protection. A character by the name of "Bill," for instance, received protection despite only making appearances in three advertisements. His personality was pondered to be outlined sufficiently.

Currently, the US Copyright Act grants copyright to an author if the work is original, creative, the true subject of copyright, and stable in a physical medium of expression. Position under the US Copyright Law and Evolved Tests Imaginary people are in a general sense not copyrightable as the Demonstration expresses that under no situation can copyright security for a unique work of origin delay to any thought, and assuming a fictitious person were something like a stock person, such a person would miss the mark on novel expressive quality expected for copyright insurance, separate from the work in which it shows up.

By the by, courts have embraced a two-stage test to control copyright encroachment of an imaginary person. Courts must apply this test to determine whether the character's expression is copyrightable; furthermore, assuming that it is, whether there is an encroachment of this articulation. In light of the past inquiry, two tests specified by US courts are monstrously well known, in particular, the 'Unmistakable Depiction' test and the 'Story Being Told' test.

1. The ‘Distinct Delineation‘ Test

• The Distinct Delineation Test was likewise made material to accord protection for the person Tarzan, as the person was "adequately depicted by the creator to be copyrightable." Also, the person Superman was found to "exemplify a plan of occurrences and artistic articulations unique with the creator," thus being legitimate in getting copyright insurance.

• Superman was acquainted with people in general on the front of Activity comics in 1938, which prompted exceptional deals of the comic books. Understanding this, Vicor Fox, a worker working for the organization, quit his place of employment and shaped another organization named Bruns Distribution. He utilized a workmanship studio mentioning that studio to make for him a 'Superman' and this prompted the production of 'Wonderman.' After the principal offer of 'Wonderman,' DC Comic books documented a suit of copyright encroachment and zeroed for its situation on the similarity of abilities among the two characters, explicitly the way in which Wonderman was shown utilizing them. The issue of character protection was accordingly introduced on account of Investigator Comics, Inc. versus Bruns Distributions, Inc., and the court ruled for Investigator Comics.

Besides, on account of DC Comic books versus Mark Towle, the ninth Circuit Court of requests in the US decided that the 'Batmobile' is qualified for copyright security as being safeguarded as a work of authorship is adequately unmistakable. The respondent possessed a business called Gotham Carport, where he sold imitations of vehicles highlighted in motion pictures and network shows. DC Comic books sued him for copyright encroachment in 2011 for selling reproductions of the Batmobile from the 1960s Network program and 1989 Batman film.

2. The 'Story Being' told Test

With the shortfall of distinct standards in the Nichols outline test, the 10th Circuit offered the 'story being told' test in the Warner Brothers. case.In 1930, Dashiell Hammett exchanged the film, radio, and TV freedoms to his novel, 'The Maltese Hawk,' to Warner Brothers. Pictures in view of these three films were made. Hence, Hammett went into a concurrence with the Columbia Broadcasting System(CBS) for a public broadcast 'The Experiences of Sam Spade,' in which only the personality of 'Sam Spade' was taken from the book. Warner sued CBS as it claimed the radio telecom privileges too. The court dismissed Warner's case on the premise that "a person may possibly be safeguarded under intellectual property regulation in the event that the person is the story being told, yet assuming the person is the chessman in the round of recounting the story, he isn't inside the region of the security managed by copyright." The Court held that Warner Brothers. saved its restrictive freedoms to the book (even from the genuine writer), however the author was only battling to safeguard his entitlement to utilize his creation. It was concluded that the creator claimed his authority to involve his personality in different fills in as long as these purposes didn't attack on the particular unique work, which had been protected to Warner Brothers.

Similarly, on account of All inclusive City Studios versus Kamar Indus, when a producer began selling items with the name, 'E.T. Telephone Home,' General City studios brought legitimate activity against them. The court tracked down that the E.T. character was a crucial piece of the film (E.T. - The Extra-Terrestrial) delivered by All inclusive City Studios. E.T was "an interesting and unmistakable person about whom the film rotates, which is copyrightable," and in this manner General was qualified for help.

Thus, as per this test, the imaginary person should be a pivotal piece of the story that is being told, and not just a chessman in that frame of mind of recounting the story.

Position in India

In India, canvases, models, drawings, etchings, or photos have been enveloped in the meaning of 'artistic works.' Nonetheless, a person isn't secured; what is protected is the exact drawing of an animation or episode in light of it. In like manner, under the meaning of 'scholarly works,' the work, which is recorded in words, is copyrightable. Nonetheless, a person's qualities are not copyrightable as they stay in that frame of mind of the perusers, and in this way the whole story, which, whenever read in sum, gives a touch of the person. Accordingly, under the Indian legal regulation, characters don't fall under the class enrolled as copyrightable in the Copyright Act. By and by, the courts have still extended the area of the articulation 'work,' and have protected characters in different choices.

On account of Raja Wallets versus Radha Wallets, the comic person Nagraj was imitated by the litigant in his comic, and was named 'Nagesh.' The court found that 'the's characters were comparable and both the green snakes had a serpentine-like look with red belts." The court held that the thought was acquired, however the articulation was duplicated as well. The court gave an in-between time directive for the length of the suit to deny the respondent from circling stickers, banners, or some other material, supporting the person under the name Nagesh.

The subject of what makes a person equipped for getting protection under the copyright system was examined on account of Star India Pvt. Ltd versus Leo Burnett, where the court thought, "The characters to be promoted probably earned some open respect, or at least, accomplished a type of a free life and public acknowledgment for itself autonomously of the first item or autonomously of the milieu/region in which it shows up."

On account of Sholay Media and Entertainment Pvt Ltd. versus Parag Sanghvi and Ors, the Delhi High Court forced a fine of Rs. 10 lacs as corrective harms on Chief Slam Gopal Varma for 'purposefully and intentionally' emerging with the redo of the 1975 blockbuster 'Sholay,' by abusing the restrictive copyright vested with Sholay Media and Entertainment Pvt Ltd and abusing the characters named Gabbar Singh, Jai, Veeru, Radha.

The legal recognition of copyright, existing in artistic characters, was featured on account of Arbaaz Khan versus North Star Amusement Pvt. Ltd by the Bombay High Court. The court, while looking at whether copyright would stay alive in the personality of "Chulbul Pandey" from the Dabangg film establishment, believed that "Concerning the overall rule that the person is novel and the depiction of that person as likewise the 'reviewing' of that person in a basic artistic work is equipped for protection is adequate."

Infringement

Whenever it is perceived that a fictitious person is copyrightable, the person's maker or proprietor should lay out a veritable Infringement. He wants to show that not just has there been a general getting of thoughts yet in addition duplicating of the method of articulation. Purposeful replicating is very difficult to show clearly, as a rule, thus it is regularly finished up by roundabout proof. The significant test used to direct Infringement is by likening the 'level of significant closeness' among the first person and the asserted infringer.

The courts have been more permissive in giving security to those characters that outwardly affect the personalities of the perusers and watchers. Assurance is possibly allowed when the court is made to accept certain that the characters are very much depicted. The courts are severe about the way that characters can get copyright insurance just when they become an articulation. Thoughts can't acquire copyright Protection.

The inquiry that actually remains is - "Under which classification of 'work' would it be a good idea for us we believe a person to be conceded copyright protection?" What can be safeguarded under 'creative works' is the specific drawing of the animation and the episodes in view of it. The elements of the person stay out of this ambit. Similarly, under 'abstract works,' what can be protected is the entire story, from where the person must be seen by grasping it completely. Under the legal Indian regulation, characters don't precisely fall under any of the classifications of 'works' enrolled in the Act to be given Copyright Protection. It is similar situation in the law for the US. However, the courts have suo motu found a way the way to independently give them security. In this way, the makers and proprietors of imaginary people, whether visual, artistic or animation, can protect their privileges in the characters by guaranteeing that:

• The character is very much outlined

• The character has predictable, generally recognizable qualities

• The character is a basic piece of the story being told

• The character is extraordinary

• The character is very much communicated and isn't just a thought

• Copyright enlistment in the characters is gotten quite far

Significance of Character Protection for Media Industry

Contingent upon an essayist or artist's particular industry, it's easy to comprehend the reason why the protection of imaginary people is a particularly significant issue for copyright proprietors. Double-dealing of fictitious people is an essential wellspring of income for diversion and promoting organizations. Characters, for example, Superman and Batman are the groundworks of enormous amusement establishments and are generally protected under both copyright and brand name regulation.

The protection stood to imaginary people in some cases conflicts with the fair utilize right to remark upon or censure those characters. This is especially normal in spoof cases. For instance, one court would not allow a X-evaluated spoof, Scarlett Fever, that pre-owned characters from Gone With the Breeze. (Metro-Goldwyn-Mayer, Inc. v. Grandstand Atlanta Agreeable Creations, Inc., 479 F.Supp. 351 (N.D. Ga. 1979).

One more court allowed distribution of an original utilizing characters from Gone With the Breeze however composed according to a slave's point of view. (Suntrust Bank v. Houghton Mifflin Co., 268 F.2d 1257 (eleventh Cir. 2001).) The dissimilarity in the two feelings — both in view of Gone With the Breeze — might be because of the way that in one work the characters were satirized in an expansive sexual joke, while in the other the characters were utilized to incite conversation about racial generalizations.

To put it plainly, the copyright security accessible to fictitious people is a mind boggling issue with a reasonable plan of cash in question. Courts will frequently gauge the fair use contemplations against the privileges of copyright proprietors to control subordinate works. The more unambiguous and less conventional a specific person is, the more probable that the person can get security beyond the first work in which it shows up.

The following are several fascinating cases including the copyrights of film characters:

• Sholay Media and Diversion Pvt Ltd. v. RGV Creations Pvt. Ltd:

The Delhi High Court slapped a fine of Rs. 10 Lakhs as correctional harms on Chief Smash Gopal Varma for "purposefully and intentionally" emerging with the revamp of the 1975 blockbuster 'Sholay', for abusing the elite copyright vested with Sholay Media and Diversion Pvt Ltd and for abusing the characters of Gabbar Singh, Jai, Veeru, Radha.

Justice Manmohan Singh:

"The exposure material combined with the decried film, gives a general impression that it is a change of the film Sholay. The utilization of comparative plot and characters in the decried film combined with utilization of the fundamental music, verses and foundation score and even discoursed from the first film Sholay adds up to Infringement of copyright of the film Sholay."

The film was at first named 'Smash Gopal Varma ke Sholay' and it was subsequently renamed as 'Slam Gopal Varma ki Aag' after a suit was recorded against RGV Creations Pvt. Ltd for Infringement of copyrights of the film title moved by Sholay Media and Diversion Pvt Ltd. Furthermore, following eight years, RGV Creations was sued again by Sholay Media and Amusement Pvt Ltd. for Infringement of copyrights of the story, music, exchanges and characters and that brought about the new judgment.

• DC Comic books v. Mark Towle

The ninth Circuit Court of requests in the US decided that the 'Batmobile' is qualified for copyright protection as being protected as a work of authorship is adequately particular. Mark Towle maintains a business called Gotham Carport, where he sells imitations of vehicles highlighted in films and network shows. DC Comic books sued him for copyright Infringement in 2011 for selling reproductions of the Batmobile from the 1960s Program and 1989 Batman film.

Conclusion

Each maker merits the right of his creation to be secured. Simple thoughts of characters don't get copyright protection. Just when these thoughts become an articulation, the characters are allowed copyright protection. Consequently, a very much portrayed character can be conceded copyright protection. However, the classification under which a person can be conceded copyright security actually stays a secret. It can't be put straightforwardly under the classification of creative work or scholarly work. There are no express arrangements in Indian regulation which could give copyright security to film characters and that proposes the requirement for laying out a different lawful classification explicitly for the insurance of these characters.

References

1.https://www.mondaq.com/india/copyright/1112382/exploring-copyright-protection-for-fictional-characters

2. https://knowlaw.in/index.php/2022/08/12/can-fictional-character-be-protected-under-law/

3.https://www.legalservicesindia.com/article/2551/Copyright-Protection-For-Fictional-Characters.html

4. Dr Vandana Mahalwar, ‘A Quest for Home of Fictional Characters: A Validation for Change in Copyright Protection’ [2014] II JCLC 147

5. Warner Bros. Pictures, Inc. v. Columbia Broad. Sys. Inc., 216 F.2d 945 (9th Cir. 1954)

6. Leon Kellman, ‘The Legal Protection of Fictional Characters’ [1958] 25 BLR 3

7. https://lexforti.com/legal-news/copyright-protection-of-fictional-characters/

8. https://blog.ipleaders.in/superheroes-copyright-fictional-characters-enjoy-protection/

9. https://www.nolo.com/legal-encyclopedia/protecting-fictional-characters-under-copyright-law.html