The Protective Mechanism
Three distinctive bodies of law which provide for the 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 labour, 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 characters face friction in getting protection under copyright law when they take 'life of their own', that is to say, they exist independent 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.
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 graphics 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. Top IPR advocates in India can explain the concept in detail.
In another case, Warner Bros pictures Vs Columbia Broadcasting System , a test of the 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 .
There are various kinds of fictional characters like pure characters, cartoon characters, literary characters etc. In a case of Malayala Manorama v. VT 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.
Trademark Protection and Unfair Competition
Other measures i.e. trademark and unfair competition protect 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. The best IPR attorneys in India can help you with Trademark registration .
Trademark law protects the symbol or name of the character, not the story or everything else behind it. Many trademarks 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.
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 tests 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.
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