Protection of Intellectual Property Rights - Fictional Characters

Can you write a new Harry Potter? No, But you could more generally write a story about a young person who discovers he has magical powers and uses them to battle, foil the plans of, and ultimately vanquish, a supervillan with aspirations of world domination.



Fictional characters like Harry Potter, Superman, Mickey Mouse all these are not less than a celebrity. They have become so popular that these need to be protected. If these characters are not protected then the creator of such character would be at loss. Fictional characters are at the center of a multibillion-dollar industry offering strong motivation for owners to fight to preserve their monopoly any way they can. For instance, Forbes reported in a list of top ten earning fictional characters that Mickey Mouse made $5.8 billion in 2003.Harry Potter, a new addition, made $2.8 billion, the same year In fact, J.K. Rowling, who was on welfare before she wrote the Harry Potter books, is now the first author to qualify for a spot on Forbes’s billionaire list.

Picture Courtsey- dearrichblog.blogspot.in

Attached Value

The stories and plots may be forgotten over time, but, the characterstics of the Famous Fictional Characters frequently become a part of the readers imagination, often providing them with a sense of connection. These ever lasting characterstics of the fictional characters attach a certain value to these characters. The value attached to it reflects the work of the creator, his labour. The relevance of this topic is illustrated by an article in The New York Times regarding Vladimir Nabakov's 1955 novel Lolita and a new book, Lo's Diary, by Pia Pera that allegedly has made extensive use of Lolita and its main characters Lolita and Humbert Humbert. The Nabokov estate has reacted to the publication of Lo's Diary by bringing a lawsuit against Ms. Pera alleging copyright infringement. Ms. Pera has reacted to the lawsuit by stating "Lolita belongs not just to literature but to everyday language and contemporary mythology. This suit makes one wonder whether new light can be cast on our cultural heritage only after the term of copyright has expired."

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The maker and additionally distributor ought to dependably find a way to guarantee that the Fictional character is ensured, particularly if there might be a plausibility to utilize the character in book spin-offs, or for authorizing the utilization of the character for films, TV programming, electronic or other media or marketing. It is just by keeping up control and security of the Fictional character that income streams might be expanded for the maker/distributor of that character.

Picture Courtsey- collegehumor.com

The Protective Mechanism 

Three distinctive bodies of law which provides for protection of fictional characters are copyright, trademark law and unfair competition.  Copyright protection provides authors with a legal mechanism to control the use and exploitation of the characters they create. It allows authors to reap the benefits of their creative labor, influence the development of their characters in subsequent works, and inhibit others from misappropriating their intellectual property—the fictional characters themselves. 

Fictional Characters vs Graphic Characters

Fictional charatcers face friction in getting protection under copyright law when they take 'life of their own', that is to say, they exist indepedent of the original story/work. Fictional characters have the same basic characteristics as graphic characters in that they portray the uniqueness of a particular character; the character has a name, physical appearance and attitude or character traits. The primary difference between the fictional and graphic character is that the physical appearance and characterization of the fictional character resides in the imagination of the reader and is continually being developed in the reader's mind by the author's description of the character as the story unfolds. This is in contrast to the graphic character where the physical appearance and characterization are visually apparent for the reader. 

Judicial Decisions

Fictional Characters have seen inconsistencies in being granted protection under the copyright law, this is primarily because the similarities between fictional characters are frequently less concrete than those for graphic characters. Usually fictional characters are not represented by a singular physical image but instead are merely representations that appear in the reader's imagination and therefore different fictional characters are only abstractions that cannot easily be compared.

Fictional characters have to pass a test of delineation to get copyright protection.  This distinct delineation test was propounded in case Nichols v. Universal Pictures Corp. This test means that whether the character can be sufficiently distinct to give it a protection. The more developed the character, the more protection is given. 

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In another case Warner Bros pictures Vs Columbia Broadcasting System, test of story being told was propounded. In analyzing whether fictional characters could be proper subjects of  copyright protection, the Ninth Circuit found it “conceivable that the  character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by copyright. The court emphasized that “the characters were vehicles for the story told, and the vehicles did not go with the sale of the story.” So, for copyright protection of fictional characters the character must be sufficiently described and distinct.

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There are various kinds of fictional characters like pure characters, cartoon characters, literary characters etc.  In a case of Malayala Manorama v. V T Thomas, Court allowed Mr. Thomas to carry on with his work of drawing the characters of Toms Boban and Molly even after leaving employment. The publishing house was restricted from claiming copyright over the character and continuing to draw the same character after terminating Mr. Thomas’s employment. The High Court had opined that since V T Thomas had created the character before entering into employment with the publishing house, he is the one who should be allowed to carry on the exploitation of his work even after leaving employment. The Court deciphered that the copyright over the drawings made using the character would vest with the publishing house as an artistic work, while the copyright over the actual character remains with Mr. Thomas.

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Trademark Protection and Unfair Competition

Other measures i.e. trademark and unfair competition protects these characters if they have become related to a product and if it is not protected then it may deceive the public. A fictional character, similar to a graphic character, cannot obtain trademark protection for its own protection, but may only be protected when the trademark indicates a particular source of goods and services

Trademark law protects the symbol or name of character not the story or everything else behind it. Many trademark like Tarzan, Charlie Chaplin have been given protection under trademark law. Also, the appearance and costume of character have been protected by trademark and unfair completion law.

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CONCLUSION

There are various tests laid down by Courts to protect fictional characters. But the Court still finds it difficult to ensure distinctiveness of the characters. Many test have been challenged and proved to be vague. Trademark law has proved to be a better alternative for fictional character protection. Still much needs to be done to identify which character needs to be protected.