At some point of life, all of us have struck friendship with fictional characters and may well even have formed alter-egos out of them and if only we could free them from the clutches of law. Fictional characters are the creation of literary, artistic or cinematography work. In ‘Warner Bros Inc. v. ABC’, the US Court defined “character” as “aggregation of the particular talents and traits his creator selected for him”. Upon publication, these characters become open for public exploitation.
It is to be noted that stock character, archetype and characters that lack unique characteristics are excluded from the purview of copyrights. Further, it is not only the collection of characteristics attributed to a character that can be copyrighted but also individual characteristics. The glove worn by Freddy Krueger in the Nightmare on Elm Street films was given copyright protection. Courts have espoused two principles to determine the copyrightability of fictional characters :
- Especially Distinctive Test
This test elucidated in the US decision of ‘D C v. Towel’, has three elements. First, the characters must have “physical and conceptual qualities”. Second, the “character delineation test” i.e the character must be delineated to the extent that warrants protection. This means more the character described, more the character can be protected. For example, the consistency maintained in expressing the characteristics of James Bond in sixteen movies reflects the higher measure of delineation of the character. Third, the character must be “especially distinctive” and “contain some unique elements of expression.”
- Story Being Told Test
This principle means the character must be well delineated to constitute the story being told than being a chessman who narrates the story. In other words, the character must not be a mere vehicle for telling the story; instead the story must revolve around the fictional character. This test was applied in ‘Universal Studio v. Kamar Industries’, where the Court upheld that character ‘ET’ was copyrightable as it was unique and distinctive character about whom the movie revolved.But this rule later on was diluted in ‘Air Pirates’ case where the Court held that the fictional character can be copyrighted even without complying ‘story being told test’ provided the character is sufficiently described to cross the fine line from idea to expression.
Courts have been liberal in granting protection to graphic characters compared to literary characters. In Superman case, the Court upheld that creator of “Wonderwoman” has substantially copied pictorial and literal elements of “Superman”. This does not mean artist are discouraged from using the idea of man super human powers.
Fair dealing means right to utilise copyrighted work for purpose to criticise, to comment, to analyse and even use it for educational purpose. In ‘Walt Disney v. Air Pirates’, the court had to examine whether these characters could be utilised for the purpose of parodying a character. The court was of the opinion that exact replication of the “Mickey Mouse” and “Donald Duck” did not amount to fair dealing. In ‘Mattel v. Walking Mountains’, the court upheld the use of nude Barbie dolls for the purpose of photography as fair dealing. The use was parody to point out the society’s tendency to objectify women.
Fictional characters in Public Domain
After the expiry of the period of copyrights, the fictional character will enter public domain. Such characters in public domain are not copyrightable. New authors are encouraged to add new creative elements to those characters and give life to those characters in their own versions. This has been done by Universal Pictures with Mary Shelley’s “Frankenstein” and Bram Stoker’s “Dracula,” and Disney with the Brothers’ Grimm “Snow White,” “Cinderella,” and “Rapunz”.
It is to be noted that in India the definition of literary work or artistic work does not include character although artistic works like cartoons are protected. The characteristic of character could only be ascertained from the totality of the work, moreover cases where protection is given to fictional character has not come up in the Indian jurisprudence much. In MalayalaManorama v. V T Thomas, the Kerala High Court did not delve into copyrighability of the character but restricted to ownership over the characters “ Boban” and “Molly”. With the rising number of Indian Superheroes in the mainstream Cinema and comics, the day when Indian Jurisprudence unlocks the pandora’s box of intricate issues that revolve around the copyrightability of fictional characters is not so far because when superheroes become the saviours of our mundane lives, we are obliged to protect them legally.