Copyright,Intellectual property,Trademark
14 May 2016  |  Views: 107  | 
Tanushree Sharma


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.

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 have to pass a test of delineation to get copyright protection.  This distinct delineation test was propounded in case Nichols v. Universal Pictures Corp.[1] 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.  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. 

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[2] , 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.

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. 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.


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. 




[1]  45 F.2d 119, 121 (2d Cir. 1930).

[2] AIR 1989 Ker 49

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