Copyrighting Fictional Figures And Its Legal Frontiers; From Ink To Law
Author: LawSphereX
Category: Intellectual Property
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COPYRIGHTING FICTIONAL FIGURES AND ITS LEGAL
FRONTIERS; FROM INK TO LAW
Ajay R, Jindal Global Law School, OP Jindal Global University
ABSTRACT
Copyright’s wisdom has emerged important in the modern world as the quench for change and better livelihood is in the rising. Ideas as an origin to the creative works that have been established, will have the aid of copyrighting to preserve the originality of the work. Story tellers and their creation of characters are also no different than other works, as it is still a creation of literary works. Fictional characters are etched in minds of readers or viewers who tend to carry the supposed fame and power the characters hold, and in turn, we can see the same has been channeled into markets as merchandise and much more. This paper will talk about the scope of fictional characters and copyright laws pertaining to them, with the help of various key legal cases and established principles that have paved the understanding of the laws.
In addition to this, we will be looking at the laws from other jurisdictions as well to derive and compare. Keywords: Idea dichotomy test, Substantial Similarity, Copyright, Copyright protection, fictional characters, films, Marvel Cinematic Universe, DC Comics.
Introduction
"Movies can and do have tremendous influence in shaping young lives in the realm of entertainment towards the ideals and objectives of normal adulthood," in the words of Walt Disney, can we interpret it is the movies as such create the impact, or is it from a layman’s liking of a character that was portrayed in a good manner? Entertainment has been the key to take one away from the reality, to relate and resonate with the characters that constitute any form of entertainment, be it a movie, theatrical play, novel, or even miming. These such derivatives of a creative mind are often celebrated and cherished all over, by the characters who’ve played the role. Few fictional characters shown in movies has often become a reality, where to bring in an example, a political satirical drama’s protagonist went on to become a chief minister in Tamil Nadu in the 70s.
The characters that are fictionally developed over time has the tendency to be remembered and celebrated high by the person who plays that role. If it is the case of a book, the cover page of a person will be most commonly associated with the character that has quite the fame. Movies are altogether a different scenario, where the whole idea revolves to be around the basis of characterization based on a famous actor present at the industry. Since the character also builds a significant amount of fame, the question arises if it is the character that has the right of not being copied or will it be the actor who carried out the character’s portrayal. In delving deeper of how best the copyright protection is been associated with fictional characters, we will have to understand the common principles of how it is determined in the USA.
Early stages of copyright protection and its emergence Copyright laws is a constantly developing and evolving part of law. The innovation and the ideas a human being can be a host to is of a variety of things, and in concern with the fictional characters and character arcs that is being created in almost all the literary works are in many ways different and novel. To this regard, we will have to see the fact of how the evolution has worked itself in securing the fundamental legal basis for copyright protection in terms of "originality" and "fixation" in a tangible medium. It wasn’t till the early 21st century, the courts were willingly considering the possibility of a work of fiction and its characters to be of a concretely protected manner. In the year 1914, it was “Nichols v. Universal Pictures Copr.
” Case brought in the specificity aspect in determining the need for copyright protection in lines of the generic nature of the characters. Mother-in-law figures aren’t eligible due to the lack of distinctive nature and traits to the story. 1 The significance of this case was on the ruling where it highlighted the “Sufficient Delineation” concept, which was later on followed as a principle in the further cases that was dealt with the same issue in the region of New York. This was an early development that the world saw in the fields of identifying a Fictional Character’s integrity and importance not to be taken lightly, and it opened the scope for people to open up about their work being copied. 2 In the modern era, USA saw more and more cases in the same linear, making the scope and rule of law to have an expansion in understanding the same.
The comic world there was known to be of its fame, as the market was very huge there, and the movies and superhero tales we enjoy now are mere adaptations of the literary art works from back then. The major producing house to these stories is the infamous Warner Bros and CBS television broadcasting company. 3 The dispute that brew between them was again a case for more films and shows in this regard. The fictional character “Sam Spade” was in dispute to the role as congress tried to sell the work, for which the author’s characterization portrayed by the sale was infringing the original work. Copyright tests of USA and its impact United States of America and its copyright laws when it comes to the fictional characters, for the one who might possibly be infringing, are seen to be divested as in the case of the tests it holds to the idea of determining the same.
The characters are to go through the medium of tests that are prevalent like “Extrinsic” and “Intrinsic” tests as well as the concept of Scenes a Faire and idea dichotomy test. In addition to these, the common two factor tests were the first to have been expressly noted amongst the nations. 4 Fiction is usually an idea expressed in the format of any literary work. Literature is often a true produce of variety of ideas that can be an eligible produce to be protected under copyright. The fact that Ideas can merely not amount as an eligible medium to be copyrighted will change its
1 NicholsvUniversal45F.2d119(2dCir.1930)
2 Kenneth Raskin, Copyright Protection for Fictional Characters, 2 PERFORMING ARTS REV. 587 (1971).
3 Bashayer Al-Mukhaizeem, Copyright Protection of Fictional Characters in Film
U.K. and U.S. Perspectives, 5 LEGAL ISSUES J. 1 (January 2017).
4 Brooklyn Law Review, Vol. 25, Issue 1 (December 1958), pp. 3-19
focus as the idea of a character in a fiction might have the hold. The first test, being the “story being told test”, is one that revolves on the main character that involves the storytelling of the whole plot in a singular manner. The narration and the movie is carried out in full focus will be considered to be protected under copyright. The character fleabag herself from the series “Fleabag”, is a protagonist based upon who the whole story revolves, this in crux makes her character to be copyrighted, and any such similar work in the exact manner of the character-development that was made to fleabag will be seen as in infringement. Enola from the world-famous sherlock series of stories, and the movie “Enola Holmes” is also a character seemingly to be a good example as the story here completely travels along with the character herself as it is written and enacted as well.
These are such characters fulfilling the story telling test, which the USA recognizes as a good medium of rule. The second test being the “Distinctly-Delineated” test, was a little varied from the first test, as here the requirement was that the fictional character would be of a distinctive nature, one who is not so commonly portrayed by anyone in generality of the literature realm. The character must be of a way that it makes the character unique and distinctive from that of the others in the fiction. These characters will be unique to the whole fictional produce than other characters generally being present. For example, in the Indian context, we can say the role of “Shaktiman” was a very systematic and unique portrayal, that made him to be seen as a distinctive person compared to the other parts of the show. However, the U. S and the U.
K are alike in the regiment of seeing “originality”, as the factor to determine the infringement if any. The Superman Scenario The kryptonite we all once dreamt of seeing in real, the super strong and super abled person, who is technically not a human being, was a superhero comic book that was celebrated all over the world. It is significant for us to investigate the facts on how the work of superman plays a small role in the world of copyrights. The literary work created by Jerry Siegel and artist Joe Shuster, was initially challenged in the courts by the contestation that it might be of a reproductive work of the fictional character “Hercules”. So far as the pictorial representations and verbal descriptions of ‘Superman’ are not mere delineation of the Hercules character but the author’s embodied version of the arrangement of incidents.
The court said that the “wonderman” character was clearly infringing the character sketch of the superman. 5 The second instance the fictional character superman played an important role was when the court held the case of Warner bros and ABC when the defendant went ahead and advertised the greatest American hero, which involved a dispute over the character Superman. 6 Warner Bros. claimed that ABC's series infringed on their copyright in the Superman character. The themes used weren’t so different from that of superman. The court to this regard didn’t followup the possibility of the fair use principle as the elements was transformative and was unfairly competing the rights as the characters were similar in nature. These are two scenarios in the work of superman character, for which the court made sure there was a connect to the character to have a recognition under the copyright laws.
Now, this was all about the USA and it’s reasoning, thought the same is followed and adapted in India, let us have a clearer look over it. Indian Perspective Indian Copyright laws is devised in a way that, there is sufficient provisions for the types of literary works to be notified and recognized under the law. The Indian copyright act, 1957 does focus on the protection of the copyright of the literary, dramatic, musical, and artistic works, to which these aspects are protected furthermore to the usage of fictional characters as well. Like in other scenarios, even to the present standing of the rules and regulations one must have accounted for the literary works, is of a derivative nature, making the timeline to have begun in 1989. The first case to have dealt in this regard would’ve been “V. T. Thomas and Ors. v.
Malayala Manorama”, where the case dealt with the ownership of the fictional characters. Can the author be the owner of his work? in this scenario, it was the cartoons of two characters. The case was more in lines with the idea of the author, under no prior commitment with Manorama, had made this work, and was later seen changing publishers. To which the court held the work belonged to the author7, and this here was the starting to the claims of characters from fiction to have any significance in the copyright laws. This case directly prescribes how an underlying protection to the fictional characters was there, but just that it had no assured factors to facilitate whether all characters are entitled to protection.
5 Detective comics v. Bruns Publications, Inc. 111 F.2d 432 2nd Cir. 1940
6 Warner Bros., Inc. v. American Broadcasting Companies, Inc. 2nd Cir. 1981
7 V.T. Thomas and Ors. v. Malayala Manorama (AIR 1989 Ker 49)
“Raja Pocket Books v. Radha Pocket Books”, was the second case to have dealt in this regard, where the idea to the whole concept of the ‘name’ of the character was to be of a figurative notion to the similarity in the character’s sketch. The publishers in dispute here, were of a connective means to the character’s sketch, and for this scenario, the court adapted the reasonable man’s test, to which the result where of a similar tone and the plaintiff was seen succeeding here8, but the core idea from this case was that, despite the changes, to a reasonable prudent man, the characters seemed to be of a similar nature, alongside to the judgement of “Warner bros. v. ABC” case, where the immediate copying of the character was to be seen. Further these two cases, the case of “Star India Pvt. Ltd. v. Leo Burnett (India) Pvt.
Ltd”, was pulled into courts for using a famous TV show for the usage of advertisement for the detergent company Tide. The case here revolved around the idea to make sure the character portrayed in the show, was of the work of author, as well, it was an infringement for the method of advertisement where it will be shown as somebody’s literary benefit. The “state of mind of public” test was carried out, and the court’s expectation was that there must’ve been a material build to the characters in the eyes of public, which seemed to be absent, for which the court held the fact it wasn’t an infringement. Furthermore, in the case of “Arbaaz Khan Production Private Limited v Northstar Entertainment Private Limited and Ors”, aka the Dabaang movie case the plaintiff’s contestation that the portrayal of the character of police officer is similar in the defendant’s works.
The court to this case held to the substantial similarity aspect and ruled that there were keen differences and wouldn’t constitute a typical similarity aspect. It would against convention to say that such a developed and unique character, only because it is 'merely a character', falls wholly outside the realm of all protection. " This clarifies the court's stance that if a character is unique and distinct enough, it is entitled to protection. 9 Given the Indian cases, the stance India has taken to the concept of the principles is more in the similarity with that of the U. S’s laws of copyrights. The idea that is followed throughout is only when a character is central to a story and its description is an integral part of a literary or artistic work, it can be protected from unauthorized reproduction or use in derivative works.
The tests that are extrinsic, intrinsic, Scenes a Faire and idea dichotomy test are the ones that
8 Raja Pocket Books v. Radha Pocket Books 1997 (40) DRJ 791
9 Arbaaz Khan Production Private Limited Vs. Northstar Entertainment Private Limited and Ors. , 2016 SCC Online Bom 1812 is still followed. Unlike the jury system to have a say in the USA, India’s law making has long relied on the judge’s discretion. The judicial reasoning must be of the concerned individual, making the ambit of ruling to be of his/her personal interpretation of the fictional characters in question. Fictional Character’s life giver; are they the eligible authors? This paper has till now soulfully has focused on how best the ideas and principles of the Indian and USA laws on copyrighting has been evolved and how it holds a stand in the present time. Some thought having put in the concept of authorship to the literary production of the fictional characters, can an individual’s claim over the character’s copyright be of a valid statute?
Is it prudent for an individual to say the usage of his character constitutes an infringement to the character as well as him, being the face of the character? Iron-man is a ironclad character portrayed by the Marvel Cinematic Universe, where the role is been played by Robert Downey Jr. This Hollywood franchise has had its fair share of being susceptible to the competitor’s similarly developed characters of this specific character. If a franchise similarly creates a character and portrays a role in such a way, can it be possible for the actor to claim it is an infringement of his own role? This is a question that needs to be addressed by the Indian laws, since there have been cases like the Dabaang Case10, having similar portrayal if characters in almost all the Bollywood movies.
The human imagination created here is of a greater importance, making the whole idea of the character’s face to the public is made via an individual. To bring in the Indian concept, “Sholay”, just the name would paint Actor Amitabh Bachchan’s face in everybody’s minds. Clearly, celebrity rights aren’t so keenly observed in such scenarios, as India doesn’t preserve the performance as means to be copyrighted. Section 13(4) of the copyright act 1957 hasn’t clearly notified about the means of performances of the fictional characters, but that is a potential addition that has to be made in the Indian laws, for the sake of smooth distinction over such factors. In the case of “Anderson v Stallone”11, the soul of the character Rocky Balboa from the movie “Rocky”, was seen to be the greatest delineated group of characters in the American Cinema.
The court didn’t find any grounds to validate the claim of infringement there, as it was a 10 Arbaaz Khan Production Private Limited Vs. Northstar Entertainment Private Limited and Ors. , 2016 SCC Online Bom 1812
11 Anderson v Stallone (United States District Court, C.D. California, 1989)
profound character sketch and having one face to it. To bring in an hypothetical scenario as well to this case, if the crew members sued the Actor, Sylvester Stallone, to the likings of him creating a fifth Part forth with to the latest part, can a defense of him being the face of the character be a strong contestation in a suit against him? 12 These are such instabilities yet to be addressed in the copyright laws, along with the existing possibilities of uncertain measures of tests prevalent in Indian copyright laws. Conclusion In conclusion, the copyright protection of fictional characters is a complex and evolving area of law, with significant implications for creators, rights holders, and fans alike. While both India and the United States have made strides in establishing legal frameworks for protecting fictional characters, certain challenges and instabilities persist.
The emergence of copyright protection for fictional characters has been a gradual process, with key cases like Nichols v. Universal Pictures Corp. and Warner Bros. v. American Broadcasting Companies, Inc. playing pivotal roles. These cases have helped to clarify the principles governing character copyright, such as the "sufficient delineation" test and the distinction between ideas and expressions. However, the application of these principles can be complex, especially in the context of derivative works, fan fiction, and the evolving digital landscape. The boundaries between fair use and copyright infringement can be blurry, and the challenges of enforcing copyright protection in the face of digital piracy and unauthorized use remain significant. 13 Furthermore, the issue of authorship and character rights presents additional complexities.
While creators may have initial rights to their characters, the involvement of actors, producers, and other parties can raise questions about ownership and the scope of copyright protection. To address these challenges, it is essential to continue developing clearer legal frameworks, enhancing enforcement mechanisms, and fostering international cooperation. By doing so, we can ensure that the rights of fictional character creators are adequately protected while promoting creativity and innovation in the entertainment industry. There must also be a harmony of the pre-existing laws and must strengthen the grip of culture industries and must bring stringent measures where the fictional figure’s public face, upon enjoying the personal
12 Leslie A. Kurtz, Fictional Characters and Real People, 51 U. LOUISVILLE L. REV. 435 (2013).
13 California Law Review, Vol. 78, Issue 3 (May 1990), pp. 687-720
nature of legitimate justifications must be recognized and used in the intention to keep the rights firmly in bounds.14 In the future, it is likely that the law governing fictional characters will continue to evolve in response to technological advancements, changing cultural norms, and emerging legal challenges. As the value of fictional characters in popular culture continues to grow, it is imperative that copyright law remains adaptable and effective in protecting their rights."
14 Michael Madow, Private Ownership of PublicImage
PopularCultureand PublicityRights, 81 CALIF. L.
REV.127, 128 (1993).