Work of Fiction: Idea or Expression?

Ironman, Batman, Tarzan, Mickey Mouse, James Bond, Harry Potter are not merely names but are “cultural heuristics,” with the power to transport, amaze, horrify, and inspire. All of us, on a daily basis, delve into their stories and associate with them on a personal level, even get inspired by them sometimes. Characters may be described as the very essence of work and are irreplaceable to such an extent that the work loses its plot and all that remains is the mere “idea”. A classic example of this may be that of Captain America from Marvel’s Avengers or the character of Salman Khan in Dabbang, which are literally the Superheroes of Copyright!

fictional charactersFictional characters or the “works of fiction” as one may call them; have the ability to attach themselves to the lives of readers in a manner that engages them both emotionally and mentally, perhaps as a result of narrative techniques that invite readers into the inner lives of characters. In the words of Suzanne Keen, “even though readers know perfectly well that fictional characters are make-believe, they go on caring about them, lending them the bodies that they do not possess, feeling with them in an emotional fusion that paradoxically calls into embodiment a psychic corporeality vouched for in readers’ own bodily responses.”

Now the question which arises is, when such characters form the very essence of a work, that is when they are so fundamental to the experience of engagement, why is there a reluctance to grant them the protection they need? The reluctance to extend copyright protection to fictional characters stems from their dichotomic nature. The reason being that, as per the conventional idea of a “copyright”, which basically confers such exclusive right only when the literary work is not a mere idea but, is reduced in a manner that it can be called an “expression of the idea”, fictional characters are merely ideas in the mind of the author.

A core principle of copyright protection is that it grants authors and creators exclusive rights to their works, but not to ideas, procedures, methods of operation, or mathematical concepts. This dichotomic nature of the characters is due to the infamous tussle between idea and expression, also referred to as the Idea-Expression Dichotomy, which restricts the protection of every element of the characters such as its name or any catchphrase but extends to only such works that are actually developed in a material form. The law is stringent upon the principle which protects only the expression of the ideas so formulated but not the general idea that belongs to the public domain which forms only an element of the work or some concept which underlies such work.

In Detective Comics v. Bruns Publications, it was observed that while an author is “not entitled to a monopoly of the mere character of a ’Superman’ who is a blessing to mankind”, the character of Superman embodied an arrangement of incidents and literary expressions that were original to the author and that the character could be granted copyright protection on this basis. One of the most prominent tests laid down in the case of Nichols v. Universal Pictures Corp. is the Character Delineation Test which basically purports the direct relationship that exists between the character and its development and the protection accorded to it, that is, the lesser the development of the idea of the character, the lower the degree of protection.

The infamous case revolving around the protection to Batmobile which although was not a character per se but a high-tech automobile of the character Batman developed by DC Comics, led to the pronouncement of three tests for the purpose of determining whether a character is copyrightable or not. The tests were as follows:

  1. the character must possess both physical and conceptual traits;
  2. the character “must be “sufficiently delineated” to be recognizable as the same character whenever it appears” – to the extent appearance of the character changes, the attributes must be consistent and identifiable; and
  3. the character must be “especially distinctive” and “contain some unique elements of expression.”

The position in India with respect to the copyright-ability of a fictional character is no different and the Indian Courts have demonstrated a similar stance. The infamous daily soap, as we all know, called “Kyun Ki Saas Bhi Kabhi Bahu Thi” was denied relief when another daily soap “Kyun Ki Saas Bhi Kabhi Bahu Banegi” portrayed a similar character, on the ground that the character was not merchandised enough to gain public recognition and went on to observe that “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.”

I, for one, do not agree with this judgment of the court primarily because the show was iconic and the characters like Mihir and Tulsi were popular enough to be recognized independently. However, the Court recognized that the character of Salman Khan, i.e., Chulbul Pandey in Dabangg was entitled to protection and went on to observe that “But 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 something that I think I can safely accept. 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.”

Similarly, in the case of Raja Pocket Books v. Radha Pocket Books, the Court recognized that fictional characters were in fact, copyrightable. In this case, the character in question was that of “Nagraj”, which was copied by Defendant and represented in his comic books as “Nagesh”, was provided relief on the ground that the two characters were deceptively similar. The Court by taking into consideration the rules of comparison adopted in R.G. Anand, went on to observe that “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.”

Conclusion

In the words of Tyrion Lannister, Game of Thrones, “there’s nothing more powerful than a good story.” Copyright protection of fictitious characters must be acknowledged as an exercise in order to balance the interests of the public as well as of the authors and authors are, therefore, advised to make their characters distinctive.

Having said that, it should be better to have one, uniform standard of copyright, instead of using graphic characters when compared with authors who choose representation in a literary form, as a slightly easier path through the waves of copyright legislation, as they are all fictional characters at the end of the day and should therefore be placed under a single screen to protect them in legal order. This kind of inequity should be remedied by the courts because it makes it unnecessarily difficult to follow the road to owning one’s own work.

Author: Richa Bhandari- a student of the University of Petroleum and Energy Studies (Dehradun), currently an intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at vidushi@khuranaandkhurana.com .

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