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A Comparative Analysis Of Intellectual Property Rights Of Fictional Characters In India And The USA

"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."― Thomas Jefferson

Characters that have been developed by authors, filmmakers, or other content producers specifically with the intention of conveying a story are known as fictional characters. Although these individuals are fictional and do not exist in reality, they are frequently portrayed as though they did, with distinct personalities, motives, and histories. A variety of mediums, spanning books, movies, television series, comic books, and video games, feature fictional characters. They might be people, animals, or even otherworldly entities, and they are crucial to the development of the story's storyline and the audience's interest.

The need to safeguard fictional characters' intellectual property (IP) arises from the fact that they are regarded as creative works with potential for high economic worth. The owners and creators of fictitious characters are able to control and make money from their use in a variety of media, including movies, television series, comic books, video games, and merchandise, by granting them IP protection.

In the event that a popular fictitious character is created by a filmmaker and utilised in a number of films and items, the filmmaker would be entitled to a portion of the sales revenue. Without IP protection, other individuals or organisations may use the character without the creator's consent or payment, which would reduce the character's worth and restrict the creator's ability to make money from their creation. IP protection helps to guarantee that fictional characters are utilised in ways that are consistent with the creator's original vision and that retain the character's integrity in addition to offering financial advantages. In the long run, this may assist to maintain the character's appeal and cultural relevance.

In general, IP protection for fictional characters is viewed as a crucial means of encouraging investment in the production of fresh and intriguing characters for use in storytelling and other media, as well as rewarding innovation.

For the purpose of this research paper, I have decided to compare the laws and prevailing situation with regards to fictional characters of India and the USA. The goal is to see how Indian laws can improve its standards, and protect its many iconic fictional characters better.

Legal Situation In India

Sadly, there are currently no laws in India specifically protecting fictional characters, however Section 13 of the Copyright Act, 1957 protects original literary, artistic, musical, and dramatic works as well as sound recordings and cinematography films. Here it is:

Section 13 in the Copyright Act, 1957
13. Works in which copyright subsists:
  1. Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say:
    1. original literary, dramatic, musical and artistic works;
    2. cinematograph films; and
    3. 1[sound recording]. 1[sound recording].
  2. Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless:
    1. In the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
    2. In the case of an unpublished work other than 2[work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and 2[work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and
    3. In the case of 2[work of architecture], the work is located in India. 2[work of architecture], the work is located in India." Explanation.�In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.
  3. Copyright shall not subsist:
    1. in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
    2. in any 1[sound recording] made in respect of a literary, dramatic or musical work, if in making the 1[sound recording], copyright in such work has been infringed
  4. The copyright in a cinematograph film or a 1[sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the 1[sound recording] is made.
  5. In the case of 2[work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

The Copyright Act states that an idea's expression, not its actual content, is protected by copyright.

A book may fall under the definition of "literary work" as defined by the Copyright Act of 1957, making it protected against infringement; nevertheless, the characters portrayed in such a book are not protected as literary or creative works. This is due to the fact that ideas do not have property rights recognised by the law. It only acknowledges property rights in character expressions in a certain style established by the author, to the degree that the character constitutes a significant portion of the work and is thought to be distinctive in nature.

The Copyright Act does not automatically protect any characters since its primary goal is to enrich the general public by facilitating access to creative works. According to the criteria outlined by foreign courts (as we will see later), a character must possess recognisable character characteristics and traits that make it recognisable wherever it appears, or behave predictably when placed in a new plot situation, and it must dominate the narrative to the point where there wouldn't be a story without them. As a result, stock or filler characters that are barely developed and are solely utilised to forward the plot (such as Sakura from Naruto) cannot be safeguarded, and that is the consequence an author must suffer for identifying them excessively vaguely.

Thus, to summarise, Regardless of how new the concept, copyright only exists in the original expression of that idea, not in the idea itself. To enable the free exchange of ideas and promote innovation, expression rather than ideas should be protected. The scope for progress would halt and creativity would be limited if the concepts were eligible for copyright protection. The duality between idea and expression enables the author to preserve their unique work while also encouraging others to expand on it.

Any generic topic or idea cannot be protected by the copyright law, according to the sc�ne � faire principle. In the sense that a character only receives copyright protection if it is an original expression, the idea/expression dichotomy applies to character copyright. Because of the absence of originality in the idea's expression, the stock characters cannot be safeguarded.

Indian law is quiet on the subject of copyright protection for stand-alone characters and views characters as simply representations of ideas rather than as original expressions. As a result, the American Court's standards are employed by Indian courts to determine character copyright.

In the case of the One Piece anime, for instance, the characters and settings are copyright protected in the anime industry, but the fundamental concepts of freedom, adventure and pirates are not. This implies that others may utilise the same concept to develop their own anime, but they are prohibited from stealing the identical characters and settings without the original creator's consent.

Here are some influential Indian cases:
  • V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd. on 7 December, 1987
    The popular Manorama publishing business was prohibited in this instance by the Kerala High Court from asserting copyright over cartoon characters developed by a creator (known as Toms) and frequently utilised in Manorama publications. In this particular instance, the cartoons were made by the artist before he joined Manorama, and after they parted ways, there was a disagreement about whether or not they could be used by the artist in future projects.

    Although Section 17(c) explicitly indicates that the publishing company has ownership of any work produced by an employee while they were employed, the Court ruled that this was not the case here. While the cartoons were used in Manorama publications while Tom was employed there, the work was actually created before that time. As a result, once his relationship with Manorama came to an end.

    Tom was free to continue using the cartoons he had created because: a) he was the original creator and thus the first owner; and b) the cartoons were his creation. b) Although his Section 17(c) requirements persisted while he was employed, they vanished the moment he stopped working there.
  • Raja Pocket Books vs Radha Pocket Books on 6 December, 1996
    In the current case, the plaintiff sued the defendant in order to obtain a permanent injunction preventing copyright infringement as well as passing off due to the defendant's use of the character and name "NAGESH," which was confusingly similar to "NAGRAJ," and whose portrayal style was a substantial replication of "NAGRAJ." The lawsuit was filed for passing off as well as copyright infringement of the fictional character "NAGRAJ."

    The following reasons were cited by the Hon'ble High Court of Delhi in its decision in favour of the Plaintiff:
    • Two characters have a similar genesis story and main theme.
    • When using the lay observer test for copyright infringement, there is no way to avoid the conclusion that there has been a breach of copyright if the reader, spectator, or viewer is plainly of the opinion and receives the unambiguous impression that the following work is a duplicate of the original.
    • Children or younger generations are the target market for both products.
    • Applying the Doctrine of Fading in Memory test, which compares information from the perspective of a man with average intelligence and defective memory, is likely to cause misunderstanding.
    • Functionally speaking, both characters are capable of accomplishing the same thing, notably climbing walls and rooftops, tossing snakes, using venom to make things melt, having snakes that can merge into their bodies, and utilising snakes as ropes.
    • Both are dressed in red trunks and are green in colour.
    • The mark "NAGRAJ" was first used by the plaintiff.
    • Since it has not been established that the plaintiff's right was forfeited as a result of abandonment, acquiescence, or any other circumstance, the common-to-trade argument cannot impair the plaintiff's right.
    • Simple occasional usage or theft committed covertly by others does not grant the defendant the right to infringe on the plaintiff's rights.
  • Disney Enterprises, Inc.& Anr vs Pankaj Aggarwal & Ors on 10 July, 2018
    In this case, the plaintiff claimed that the defendant violated copyright by using the picture of the fictional character Lightning McQueen in their chocolates. The Court determined that the defendants were in the wrong while expressing that:
    "Insofar as India is concerned, the fact that characters can be merchandised for commercial value, has been recognized in the above judgments, though in some cases, injunctions have been granted and in some, due to the lack of evidence, no injunction has been granted. The importance of preventing well known characters from being misused for commercial products lies in the fact that the creation of fictional characters requires a great amount of creativity and an innovative mind. Characters such as 'Lightning McQueen' have transcended the movie in which they are featured, as children recognize the said characters and treat them like living humans.

    It is not uncommon for children wanting to own toy cars which look like 'Lightning McQueen', bags and stationery products which have 'Lightning McQueen' images printed on them, talking to 'Lightning McQueen' cars etc., India has its own tradition of having a large number of home-grown characters which are liked and wanted, and such characters have immense commercial value. While fair use of the characters is permissible, within the legally prescribed norms, unlicensed use of the image of a known character on chocolates, which the Plaintiff also licenses for legitimate use on chocolates/ wrappers, would be unlawful and illegal."

Legal Situation In USA

Regardless of the underlying works, fictitious characters are protected under US law. This is based on the legal idea of derivative copyrights. A derivative work is a new creative creation that is based on an earlier one. To be individually protected by copyright law, a derivative must contain sufficient original creative work. A derivative work is a movie screenplay that is based on a book.

A creator must show that the characters are sufficiently unique and distinctive to merit this protection in order to be eligible for this kind of protection.

Being a component of the set of rights given to the creator of the original work, a derivative work is covered under federal law, more specifically 17 U.S.C. 106 of the Copyright Act of 1976. This is the law:

17 U.S. Code � 106 - Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
  1. to reproduce the copyrighted work in copies or phono records;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

A work must be unique, or have a creative element, and it must be permanently fixed in a physical medium in order to be protected by copyright in the United States. Furthermore, only the original expression of ideas and facts can be protected by copyright. The 1976 US Copyright Statute does not specifically specify fictitious characters as subject matter of copyright; rather, common law determines whether or not they are subject to copyright.

Characters have historically received copyright protection from the courts as components of broader protected works rather than as standalone works. They were considered to be "components of a copyrighted works" and hence qualified for protections in this way. Characters were not acknowledged as autonomous works beyond the story in which they were portrayed until the Nichols v. Universal Pictures case in 1930.

Since then, only the United States has established various criteria to assess whether fictitious characters are protected by copyright. A fictional character must be an original work, have a creative component associated with it, and be depicted in a physical media in order to be protected in the US. The American judicial system has developed two key criteria to assess whether a character in a work qualifies for copyright protection in the wake of Nichols.

They are:
  1. Well-delineated test
    A three-step test must be undertaken in order to implement this approach. The character must, first and foremost, have both physical and conceptual attributes. Second, the character has to be "sufficiently delineated" in order to be recognised as the same one on several occasions. He must consequently exhibit features that are constant. The character must also "contain some unique elements of expression" and be "especially distinctive." The most important consideration in determining whether a character is eligible for copyright protection is the consistency of the character's traits and attributes.

    This standard was initially introduced in the case of Nichols v. Universal Pictures, when a copyright complaint was made against a movie for a play that, in the plaintiff's opinion, had a great deal in common with the narrative and characters of her own work. The court ruled that characters in a fictional work must possess a certain trait that sets them apart from what a casual observer may initially believe (i.e. they must be sufficiently developed). According to Justice L. Hand, "the less developed the characters, the less they can be copyrighted." This came to be known as the 'character delineation' test. In essence, the character must be recognisable by their distinctive qualities; they cannot only be archetypes that frequently appears in numerous kinds of media.

    In this particular case, There were two parts to the test used to compare the characters:
    1. Is the original character's expression sufficiently delineated?
    2. Does the infringing character's expression resemble the original character's in any significant way?
    Another case under this test is DC Comics v. Mark Towle. In September 2015, the US Court of Appeals, Ninth Circuit heard the copyright case DC Comics v. Mark Towle. In his garage, known as "Garage Gotham," defendant Mark Towle created and marketed reproductions of the Batmobile.

    As a result of Mark's production and sale of replicas, DC Comics originally filed a complaint in May 2011 in federal district court, citing causes of action for copyright infringement, trademark infringement, and unfair competition. The reproductions Mark sold were identical to those that featured in the 1966 television series Batman and the 1989 movie Batman, according to the plaintiffs, DC Comics, who claimed that this violated their copyright.

    "Whether a character in a comic book, television programme, or motion picture is eligible to copyright protection" was the topic under discussion by the court. Following previous precedent, the ninth circuit developed a three-part test to decide whether to grant such characters protection.

    The three-part test that determines whether a comic character is protected by copyright is as follows:
    • The character must generally have physical as well as conceptual qualities.
    • The character must be sufficiently delineated to be recognizable as the same character whenever it appears. It must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.
    • The character must be especially distinctive and contain some unique elements of expression. It cannot be a stock character like a magician in standard magician garb.
    The Ninth Circuit of the United States Court of Appeals determined that DC Comics is the rightful owner of the copyright of the "Batmobile" character as it appeared in the 1966 television series and the 1989 films. Additionally, it was claimed that Mark had violated this copyright by creating imitations of the character. The federal district court's judgement was thus upheld by the ninth circuit as a result of its conclusion.

    The ninth circuit's decision broadened the scope of copyright law's applicability by establishing criteria for the protection of comic book characters. The three-part test that is employed to decide whether a character qualifies for this protection appears to be effective enough to allow stock characters and characters with insufficiently distinctive expressions to remain in the public domain and be utilised in derivative works.
  2. Story being told test
    In Warner Bros. v. Columbia Broadcast Systems, the United States Court of Appeals for the Ninth Circuit established the second approach. In this instance, Warner Brothers purchased the rights to the "Maltese Falcon" novel. They argued that because of this licence, they had acquired exclusive rights to Sam Spade as well and that the author was not allowed to sell a licence to Columbia Broadcasting System to utilise Sam Spade without their consent. However, according to the Ninth Circuit judgement, a character is only protected by copyright if it "constitutes the story being told."

    Sam Spade, a character from the Maltese Falcon detective fiction, was seen to be a "mere vehicle" in this situation for advancing the plot. Therefore, copyright protection was unsuccessful. The Sam Spade Test ruling in the Warner Bros. case states that a character cannot be protected by copyright if they are "mere chessman in the game of storytelling."

    Let me elaborate further. Consider a situation where the tale is about the main character. But there isn't enough character development for the main character. Is it appropriate for courts to offer protection in such a situation? If they do, it would be similar to safeguarding a generic stock character who is only a concept or theme. Ideas or topics cannot be protected; only original expression can be.

    The main goal of intellectual property law is to promote advancement in the arts and sciences. This goal would be compromised if a simple idea or topic were protected, as artists would be prevented from utilising larger concepts and themes. As a result, for instance, the anime One Piece would not exist because the "piracy" topic was previously exploited by earlier anime like Arcadia Of My Youth.

Comparison And Conclusion
Taking into consideration the information given above, we can see clearly that the Indian IPR law is lagging behind the USA. The USA law allows for the protection of fictional characters independent of their underlying works. The legal concept of derivative copyrights serves as its basis. The American judicial system has developed two key criteria by itself to assess whether an individual character in a work qualifies for copyright protection, and as such since 1930, individual characters could be copyrighted by themselves.

In contrast, in India, ideas do not have property rights recognised by the law. It only acknowledges property rights in character expressions in a certain style established by the author, to the degree that the character constitutes a significant portion of the work and is thought to be distinctive in nature.

Only original literary, artistic, musical, dramatic works, sound recordings, and cinematographic works are protected under Section 13 of the Copyright Act of 1957. So, Manga might be considered "literary work," although the cartoon drawings might fall under "artistic work." A manga character cannot, however, be given copyright protection as a "artistic work" since the legislation only grants copyright protection to an original work or expression and not to an idea.

According to me, special laws are required to protect intellectual property rights for fictitious characters in order to:
  1. safeguard authors' financial investments,
  2. foster innovation,
  3. safeguard cultural legacy, and
  4. uphold standards of quality and repute.
These regulations support the ongoing creation of unique fictional characters in the creative industry. Since there are no copyright laws or other laws specifically protecting fictitious characters, their scripts are protected under the present legal system as literary works and their performances are protected under dramatic or artistic works.

But this creates problem as lack of clarity and precision in laws makes them difficult to enforce and potentially open to capricious or unfair interpretation, which undermines the rule of law and the safeguarding of individual rights. As a result, I believe that the Act needs to provide special protection for fictitious characters, similar to the USA.

Taking into context the above, for a number of reasons, the Indian legal system should no longer rely on foreign rulings and legal precepts and should instead focus on developing its own criteria:
  1. History and cultural setting:
    India has a distinct and rich historical and cultural context. The ideals and standards of the society it serves should be reflected in the legal system. The Indian legal system may fail to recognise the intricacies and complexity of the Indian setting if it bases its decisions and principles only on foreign precedent.
  2. Independence and sovereign status:
    India is an independent country with a unique political, social, and economic structure. Relying on foreign rulings and principles jeopardises the nation's sovereignty, independence, and legal system.
  3. Relevance to local circumstances:
    Laws and concepts that may be applicable or effective in one jurisdiction may not be in another. The political, social, and economic realities of the nation should all be taken into consideration by the Indian judicial system.
  4. Motivates creative thought and creativity:
    Indian legal academics and practitioners will be inspired to come up with their own set of legal rules and rulings. This may result in the Indian legal system's expansion and improvement, enabling it to better meet the unique demands of the nation and its citizens.

In closing my arguments, it is crucial that the Indian legal system creates its own standards and rulings that are indicative of its historical and cultural background, sovereign and autonomous, pertinent to the state's circumstances, and supportive of creative thought and innovation.


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