Copyright protection for fictional characters

In Nichols, the United States Court of Appeals for the Second Circuit denied protection to the plaintiff's characters on the grounds that they were not “distinctly delineated”, but poorly developed. The plaintiff's characters of the Jewish gentleman and the poor Irish catholic girl he loved were regarded to be no more than mere ‘prototypes’. Judge Hand held that the less developed the character, the less the copyrightability of the same. Copyright protection shall therefore be enjoyed by a character provided it is well delineated. By applying this test, copyright protection was held to subsist in the character of Tarzan because it was found to be “sufficiently delineated.”[7] Similarly, the character of Superman was held to found to be well delineated by virtue of embodying original literary expressions and incidents, and therefore deserving of copyright.[8]

Under this approach, a three-step test is required to be followed. Firstly, the character must possess physical and conceptual attributes. Secondly, the character must be “sufficiently delineated” to be identified as the same character across multiple occasions. He must therefore show consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression.[9] The consistency of a character's traits and attributes is considered as the key factor for whether the character qualifies for copyright protection.[10]

The second approach was propounded by the United States Court of Appeals for the Ninth Circuit in Warner Bros. v. Columbia Broadcast Systems.[11] The Ninth Circuit court ruled that a character can avail of copyright protection only if it “constitutes the story being told”. In this case, the character in question, Sam Spade of the Maltese Falcon detective novel, was held to be a “mere vehicle” for carrying the story forward. Accordingly, copyright protection did not prevail. The holding in Warner Bros. case came to be known as the Sam Spade Test, this approach does not allow for copyright protection if the character is a “mere chessman in the game of storytelling.”

On the other hand, if the character is central to the story, then it will be copyrightable. In the case of Universal City Studios v. Kamar Industries[12] this test was applied to hold that E.T was a distinctive character around whom the story in the movie E.T the Extra Terrestrial revolved. Therefore, the copyright in E.T was held to be enjoyed by Universal Studios, and the defendants were held liable for a violation of the Studios’ copyright by the manufacturing and sale of goods under the title ‘E.T Home Phones’.

The American judiciary has followed both these tests. There have also been a number of instances where the Court has used both the tests in its analysis. For instance, in Anderson v Stallone,[13] it was held that the character Rocky played by movie star Sylvester Stallone in the eponymous movie franchise had come to be identified with certain physical traits and mannerisms that qualified as a well delineated character. Further, this ‘highly developed’ character was held to constitute the story being told. Similarly, the character of James Bond was awarded copyright protection on the grounds of being both sufficiently delineated as well as central to the story being told.[14] The fact that the character had been played by multiple actors was not held to be relevant since the characteristics associated with Bond had remain consistent across sixteen films.

Copyright protection is available to both characters that have been solely described in writing, as well as characters depicted in a visual or graphic form.[15] What is required is that the character in question possesses original or a set of distinctive traits, and visual representation is not an essential. For example, simple representation of anthropomorphic versions of human emotions by color is not sufficient for copyright without unique characterization traits.[16] If the literary character is not depicted in a visual form, and has only been described in writing in a few lines, then the character cannot enjoy copyright.[17] On the other hand, where the characters, like Sherlock Holmes and Dr. Watson are found to be distinctive enough, they are held to be subject matter of copyright, even if they are merely in written form.[18] Copyright protection may be granted to comic characters where the physical and conceptual characteristics find unique expression in graphic form.[19]

Copyright protection may also be afforded to the individual components of a character's identity. For instance, copyrightability was granted to the glove worn by the protagonist in the movie A Nightmare on Elm Street on the grounds that it helped identify the character, and therefore enjoyed a distinct protection separate from the character.[20] Similarly, the superhero Batman’s car the Batmobile was held to be protectable by copyright on account of the fact that firstly it had a set of distinctive traits, and secondly these traits could be separated from the utilitarian functions of the car and be represented in pictorial, sculptural and graphic form.[21]

The scenes a faire doctrine holds that those scenes or aspects that are indispensable to the story or are standard expressions cannot be copyrighted.[22] This limitation also applies to fictional characters.[23] Therefore, stock characters or archetypical and hackneyed elements are disqualified from protection by virtue of the fact that they are not unique in their expression.[24]

In cases of copyright infringement of a fictional character, a two-step test developed by the American Courts has to be satisfied.[25] Firstly, it must be established that the character in question is capable of being copyrighted. Secondly, it must be demonstrated that there has been an infringement of this unique expression.[26] The delineation test and the story being told tests as explained above are used to determine the copyrightability of the character, and the Court must check whether the same is precluded from being afforded protection by virtue of applicability of the scenes a faire doctrine. Following this, the actual infringement is to be decided by comparing the original and allegedly infringing work for “substantial similarities” in appearance, as well as in personality traits.[27]

Protection of fictional characters may also be derived from certain alternative sources in American law.

Trademark Law: Trademark rights may be enjoyed in a fictional character and can be enforced as such. To determine the infringement of the trademark it must be shown that the fictional character has acquired a “secondary meaning”, and that there is a likelihood of confusion to be caused to the public by the defendant's mark which is deceptively similar to the original.[28] Characters such as Mickey Mouse have been held to have acquired such a secondary meaning and protected under trademark law.[29]

Right to Publicity: This right traces its origins in the tort of privacy and is the right to prevent others from commercially exploiting one's name and likeness. The portrayal of the Marx brothers as characters in a play was held to be an infringement of their right to publicity.[30]

Dilution: Yet another remedy with its roots in trademark law is that of dilution. Under the doctrine of dilution, the plaintiff can seek relief for whittling away of the value of character. This doctrine has been applied for protection of fictional characters including that of Superman. In DC Comics v. Unlimited Monkey Business,[31] the defendants’ costumes were found to present a likelihood of dilution of the plaintiff's trademark in the Superman character.

Misappropriation: In order to argue for misappropriation of fictional characters, the plaintiff must demonstrate that firstly, there has been an investment of substantial amount of time and effort by him, secondly, the defendant has appropriated the product of such investment, and thirdly, such appropriation has caused loss to the plaintiff.[32] The action of taking the plaintiff's news bulletins and selling to its competitors was held to be a case of misappropriation.[33]

In India, recourse can be had to trademark law which recognises that fictional characters enjoy goodwill, and provides relief for cases of ‘character merchandising’. Character merchandising has been defined as involving the exploitation of fictional characters by licensing these fictional characters in the case of Star India Private Limited vs Leo Burnett (India) Private Ltd.[39] A prerequisite for character merchandising is that the character to be merchandised must have gained some public recognition, independently of the original product in which it appears. In this case, the characters in the plaintiff's were found not have acquired an independent recognition as a commodity, and therefore the suit for character merchandising by the defendants failed.