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Intellectual Property Rights are the legal rights vested with an investor to protect his invention, provided that it satisfies the criteria of non-obviousness, global novelty, and industrial or commercial application for some time. They give exclusive rights to the creator. Originally, only patents, trademarks, and industrial designs were protected. Now, a wider meaning has been given to these rights by including copyright and geographical indications as well.
[Image Source : Istockphoto]
Berne Convention ensures that the author is able to exercise his copyright independent of the protection regime in the country of origin of the work. Article 9 provides that the authors of literary and artistic works have an exclusive right to reproduce their work in any form. This Convention has also been accepted in India.
The legislation in India that deals with copyright is the Copyright Act, 1957. Section 13 states that “Only original literary, artistic, dramatic, and musical works are subject- matter of copyright.” Thus, only the original expression of an idea gets protected.
This paper attempts to understand how on a routine basis, the basic copyright guaranteed to creators gets flouted when reference to fictional characters is used to find appeal among the general public without the creator’s consent. It then proceeds to explain how the recent judgement by the UK High Court on the recognition of fictional characters as copyrighted work can change the status quo of interpretation of copyright infringement.
Instances Of Copyright Breach
A fictional character means an imaginary person represented in a work of fiction. They are based on an author’s interpretation and thus attain a separate identity from the work. As they descend from the original fiction, it is important to give copyright protection to the author for the same. There are many instances in which this gets breached. For example, for the purpose of entertainment and profits, the merchandise industry used fictional characters by imprinting the characters on their customised clothes.
Further, another example is of the local impersonators who are invited to birthday parties and asked to dress as fictional characters like Mickey Mouse, Doraemon, Batman, etc. Another very prominent example can be models profiting from their association with a fictional character that the public resonates with. They are accorded that status just because of identical physical traits. These instances might seem trivial but people make high profits by indulging in such practices.
The current understanding of protection is not based on ideas and universal facts, but only on the expression of those ideas and facts. It was held in Shipman v. Radio Pictures Inc. that an idea cannot be the subject of copyright, the basic consideration should be the impression that the audience forms after they get a copy of it. This impression or idea of the author conveyed to the audience is the determining factor. For example, no one can hold a copyright on the universal fact that there are tropical waters, or that a butterfly emerges from a cocoon. But they can do so on how they interpret the facts in their mind. It is about the original expression of the idea.
There are two major tests to determine the copyrightability of fictional characters. According to the ‘character delineation test’, the court holds that only the expression of the author should be protected instead of the ideas underlying the character. Another test is the ‘story being told test’ that lays down a three-pronged test to determine a fictional character’s copyrightability –
- Physical and conceptual qualities
- Delineation from each other
- Unique elements of expression
In India, the Copyright Act provides that it is necessary to obtain permission from the right holders if the copyrighted work is being used unless the use is under exceptions under the Act.
Gaps That Needed To Be Filled
The copyright law does not give express protection to fictional characters- they are protected only when they are within copyrightable components of the work that already pre-exists. When assessing a copyright infringement work, the courts determine whether the work is copied and to what extent. However, in the case of a character, it analyses whether the original character is delineated enough to be copyrightable and if it is, whether the reproduced character’s expression is similar to that of the original character.
This pre-condition of going back to the original author’s work creates unnecessary inconsistent adjudication. This in a way implies that the copyright is granted on the basis of the court’s interpretation of the original creator’s expression of an idea.
This elongated process of proving the underlying work had to be replaced. The recent judgement by the UK High Court does this task effectively.
In Shazam Productions Ltd v. Only Fools the Dining Experience and others the High Court held that the character “Del Boy” in the famous British TV sitcom “Only Fools and Horses” is a protected work.
Before this judgement, there was no English case on the contention whether copyright can be claimed in a character. The Court laid down two subject matters to qualifying for protection as copyrighted work. The first is originality, meaning that the matter is the author’s own creation, and the other is identifiability, which means that the subject matter was expressed in a way that it was identified with sufficient objectivity.
The court reached the conclusion that the character of Del Boy satisfied this two-stage test and was an original creation of John Sullivan, who was the script writer of the show. His creative choices were clearly identifiable to third parties in the scripts. The court held that the character of Del Boy was itself a protected literary work.
This case was approached from first principles as there was no discussion in English law on the subsistence of copyright in a character from a dramatic or literary work. This can lay down a framework for other countries to follow. It needs to be recognised that even if some parts of a character can stand in isolation, a character is to be considered in the form of a particular combination to become distinct. This establishes that a fictitious character can exist independently of the work if a character is distinguishable from it.
After this decision, authors and script writers will be able to oppose those new fictional characters that are not created by them. It is no longer interconnected with the work wherein the character was incorporated.
It has to be ensured that whenever there is a copyright infringement, the party gets a license from the copyright holder to prevent unauthorized use. This can be done by adopting a uniform standard by the courts to grant copyright protection to fictional characters.
Supplemented with it should be the inclusion of a separate provision for fictional characters’ copyright in the legislations that deal with it in various countries.
Author: Navya Bassi, a Student of National Law University Odisha, Cuttack, in case of any queries please contact/write back to us via email to firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.
- Singh A, ‘Intellectual Property Law’ (1st edn, Eastern Book Company 2013)
- Balganesh S, ‘Copyright Infringement Markets’  113 CLR 2277
- Baxi U, ‘Copyright Law and Justice in India’  28 JIL 497
- Reese A. ‘What should copyright protect?’  ANU 112
 Elizabeth Verkey, Intellectual Property and Practice (Eastern Book Company, 1st edn, Eastern Book Company 2015)
 Copyright Act 1957
 Shipman v. R.K.O. Radio Pictures, 100 F.2d 533 (2d Cir. 1938)
 Keerthana S. ‘Fictional characters and Copyright Protection’ (Lexforti, 10 August 2021) <https://lexforti.com/legal-news/copyright-protection-of-fictional-characters/ > accessed 22 November 2022
 Copyright Act 1957, s 52
 David B. Fredman, ‘Finding a Home for Fictional Characters: A Proposal for Change in Copyright Protection’  78 Calif L Rev 687
 Shazam Productions Ltd v. Only Fools the Dining Experience and others,  EWHC 1379 (IPEC)