Are creators of graphical and fictional characters protected?

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With the recent wave of films, television series, media, and merchandise around the world incorporating a slew of characters from story books, video games, comic strips, toys, and even mascots, it is imperative to identify the laws in India that would protect the owner/creator of such characters from any wrongful exploitation.

The primary difference between a fictional and graphic character is that the physical appearance and characterisation of the fictional character (also known as a literary character) resides in the imagination of the reader as per the author’s description. This is in contrast to the graphic character where the physical appearance and characterisation are visually apparent for the reader. So, while Scooby Doo and Tom & Jerry are graphic characters, James Bond and Hercule Poirot are fictional characters.

Where The Story Ends And The Character Begins

The most prominent legislation relating to the protection of fictional and graphic characters in India, are the Copyright Act, 1957, and the Trademark Act, 1999.

While a book or art strip may qualify as ‘literary work’ under the Copyright Act 1957, and thus entitled to protection from infringement, the characters described in such a book cannot be protected as literary or artistic work. This is owing to the fact that the law does not recognise property rights in ideas. It recognises property rights only in expressions of the character in a particular manner, as adopted by the author, to the extent to which the character forms a substantial part of the work, and is considered unique in nature.

The Copyright Act aims to enrich the general public through access to creative works and hence does not automatically protect any character(s). For a character to be entitled to copyright protection, it must, as per the tests propounded by the foreign courts, have consistent and identifiable character traits and attributes, so it is recognisable wherever it appears, or behaves in a predictable manner when placed in a new plot situation; and it must dominate the story in a way that there would be no story without them. Thus, stock characters or filler characters who are hardly developed and are only used to progress the story cannot be protected; and that is the penalty an author must bear for marking them too indistinctly.

These independent protected characters can be licensed separately from the stories in which they originally appear, thus serving as another income stream for authors.

Some of the judgments expounded by the Indian courts in relation to copyrightability of fictional and graphic characters include Disney v Pankaj Agarwal, wherein the court held that unauthorised use by the defendants of the plaintiff’s character ‘Lightning McQueen’ would be an infringement of their copyright, and thus, granted a permanent injunction to the plaintiffs; Raja Pocket Books v Radha Pocket Books, wherein the court awarded an injunction against the publication of a comic series by the defendant as it held that the defendant’s character ‘Nagesh’ was similar to the plaintiff’s previously published character ‘Nagraj’; in Star India v Leo Burnett, the unauthorised use of the characters from the popular Hindi soap opera ‘Kyunki Saas Bhi Kabhi Bahu Thi’ in a detergent advertisement was observed to be a case of copyright infringement as it was argued that copyright subsisted on the characters from the soap opera, and the creators did not consent to use of the characters in the advertisement; and in Arbaz Khan v. North Star Entertainment Pvt. Ltd., where the court held that while the character of ‘Chulbul Pandey’ was unique and fully developed and thus entitled to copyright protection, the defendants character was the titular character of a distinct work, and was a completely unique character for a totally different audience.

The general trend with respect to copyright protection by Indian courts must be categorised as one of restrictive protection rather than an all-encompassing scope of protection. However, with technology being increasingly pervasive, and multiple additional avenues of exploitation available, it will not be long before Indian courts propose tests to determine the conditions required to copyright such characters that are similar to the tests propounded by US courts.

Vinay Butani is Partner, and Faiz Thakur is Senior Associate, Economic Laws Practice. Views are personal, and do not represent the stand of this publication.