Copyright in case of Fictional Characters

Remember the show ‘FRIENDS’ in early 2000? Or the character like Sheldon Cooper from ‘Big Bang Theory’? Or the longest running fictional Indian show ‘Tarak Mehta Ka Oolta Chasma’?  Or “Gutthi” from ‘Comedy Nights with Kapil’? These characters that everyone cherishes so fondly are fictional characters and are only meant for refreshing the mood of the people. With these fictional characters gaining immense popularity among the public, the owners and creators of the characters have various ways of deriving profits and goodwill out of it. A fictional character is a word portrait and the physical appearance & characterization reside in the mind of the reader/viewer. The creator(s) use their imagination, skill and intellect  to create the characters so that the public loves them by giving them a unique identity, therefore, these popular characters also need protection so that they are not infringed.

To be granted protection under the Copyright Act, it has to be believed by the court beyond doubt that the characters are well delineated.  The major problem that arises while granting such protection to characters is how to decide the criteria for grant of such protection. Afterall, all the characters are so different from each other that they achieve a cult status. The courts have devised some tests known as “distinctly delineated” test and “story being told” test to solve the problem. copyright protection is given to the owner/ author which is limited to the life of the author and sixty years after his death. After the death of the original author, the work falls under public domain.

Character Delineation test

In the case of Arbaaz Khan v. Northstar Entertainment Pvt. Ltd[1], the Bombay HC had granted a copyright to the character of Chulbul Pandey from movie ‘Dabangg’ because the character was unique as also the writing up was such that it was capable of being protected. The character delineation test implies that the character should be so developed and expressed in such a form that it rises above general.

Story being told test

Under this the character has to be such that it is so essential to the story that it becomes or achieves such a status that requires a separate copyright. In the case of DC Comics v. Towle[2], “Bat-mobile” was given a copyright from the Batman comics. According to the court, the “Bat-mobile” had some unique features which made it eligible to be copyrighted.

Personal Rights

Remember the famous character called “Gutthi” played by the comedian Sunil Grover in the then most popular show ‘Comedy Nights with Kapil’? Due to fight between Kapil & Sunil, the latter left the former’s show and had also started his own show, but, the rights of that character as claimed by the producer, rested with them. Sunil then proclaimed that people recognise and call him as “Gutthi” and received recognition through that character, so he has personality rights over it.

Infringements

Its easy to infringe the popular characters to make quick money by way of plagiarism and unauthorized character merchandize. India is a country where people get inspired and try to re-create the popular characters so that they get famous and make more money. In the case of Sholay Media & Entertainment Pvt. Ltd. v. RGV Production Pvt. Ltd, the latter was found to be guilty of infringement for misusing the characters like Jai, Veeru and Gabbar Singh in the movie ‘RGV ki Aag’. In the case, the character had been granted Trademark protection to show that it does not cause any kind of confusion in the minds of people by being showed in another’s movie.

CONCLUSION

The provisions in copyright law allow for the protection fictional characters in cinematograph films under the 1957 Act. People may overlook the story, but the liking  of a fictional character remains embedded in the reader’s/viewers imagination. This infatuation provides the fictional character protection. As of now, there is no certain standard that a court has to take when deciding whether a fictional character is deserving of copyright or not[3]. Though copyright law is appealed to for protection, what the owner is attempting to protect is not always the character’s copyright, but also the goodwill that the character has built up over the years[4]. According to some reports, ‘Copymark’ protection is the new way to protect the character. Copymark, a hybrid form of copyright & trademark. The advantage is that copyright law acknowledges the value of a creative work  and granting trademark protection the original works become almost superfluous[5].


[1] Suit (L) No. 301 of 2016

[2] 802 F.3d 1012, 1021–22 (9th Cir. 2015)

[3] Arvind Pennathur –Copyright of Fictional Characters: A Myriad of Standards – The IP Law Post (wordpress.com) visited on 10-06-2021 at 20:20hrs.

[4] Shan kohli-Giving Due Protection To Fictional Characters: The Possibility of ‘Copymark’, Giving Due Protection To Fictional Characters: The Possibility of ‘Copymark’ | SpicyIP visited on 10-06-2021 at 20:27hrs.

[5] IBID

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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