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Examine the scope and extent of protection given to fictional characters under the copyright law.

Introduction
According to section 51 of the Copyright Act 1 , copyright in a work shall be deemed to be infringed inter alia when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright. For an infringement of a copyright to occur, there must first be a copyright in place.

In simple words fictional character refers to an imaginary person represented in a work of fiction (play or film or story). Based on judicial pronouncements for decades these fictional characters can be further classified into four broad categories. Firstly, Pure characters i.e. those characters that do "not appear in an incorporated work"; secondly, Literary characters which arises out of novels or scripts with description and action and thus creating the character; thirdly, Visual characters, as found in live-action movies; and lastly, Cartoon characters, a broader term than just animation, but used in reference to all line drawings of a perceived simplicity. 2 Among these four categories, pure characters have received "little or no protection" through the courts, while cartoon characters "tend to receive far more protection than literary characters." 3

Copyright Protection For A Character

Law does not recognize property rights in ideas but only in expression of the same in a particular manner adopted by the author to the extent to which they form a substantial part of the work 4 and if their expression is not copied the copyright is not infringed. 5 Emphasis should be placed on the attributes and traits create a sufficiently developed character which are distinctively possessed by Samuelson’s character. Kellman States a fictional character to be considered of “one or more of three elements: 1) It can be an idea- a general concept (like in this case); 2) It can be the expression or detailed Development of an idea; 3) It can be a name.” 6

To qualify for copyright protection, a work must be original to the author. Thus it is essential to determine where characters stand on the theoretical continuum by which expression is ultimately connected to idea. 7 The practical significance of such determinations becomes clear when a fictional character is removed from its original setting and carried forward in new vehicles. To justify the charge that a new character is not original but an infringement the incidents and situations through which that character expresses itself must also be taken into consideration. To assess whether a character infringes another party’s concept, one will invariably have dissect and compare the images of characters that fall under the same concept. This does not mean that in particular cases a title may not be so extensive a scale and of so important a character as to be a proper subject of protection against being copied. 8

What is essential is to see whether there is a reproduction of substantial part of the picture. 9 The similarities should be considered individually and then it should be analyzed whether a substantial part was copied which is decided qualitatively and not quantitatively.

Originality and idea vs expression has to be taken into account. 10 This includes two tests intrinsic and extrinsic tests which depend on audience and articulable similarities between plot, themes, dialogue, mood, setting, characters and events.

There should be an access in case of infringement and the test depends on factual dissection and expert testimony and depends on subject matter and settings involved. Anyone imitating the character and borrowing the theme of the plaintiff’s series would infringe the plaintiff’s copyright and damage to its goodwill, business and reputation. 11

The U.S courts have adopted a two-part test to determine copyright infringement of a fictional character. This test requires courts to determine whether the character's expression is copyrightable; and, if it is, whether there is an infringement of this expression. Based on the former question, few tests laid down by U.S. courts are hugely popular, namely, “I know when I see it” and “Story being told” test.

Justice Stewart in Jacobellis v. Ohio 12 used this test to decide whether something is pornographic. This test was extended to the field of copyrightablity of characters in the case Gaiman v. McFarlane 13 , the U.S. Court of Appeals for the Seventh Circuit ruled that the characters were copyrightable basing its decision on the traditional premise that for copyrightability all a character needs is "a name and a characterisation".

The Ninth Circuit proposed the “story being told” test in Warner Bros. case 14 wherein it was stated that "character may only be protected under copyright law if the character constitutes the story being told, but if the character is the chessman in the game of telling the story, he is not within the area of the protection afforded by copyright."

Misappropriation of Copyright

Misappropriation is a developed notion that an entrepreneur’s investment of effort and money in the production of a marketable value ought to be protected against exploitation by a competitor. The aim of copyright protection is to provide incentives to authors to create works of art they might not create if they feared misappropriation of those works for profits by others. 15

The misappropriation doctrine applies to situations in which the defendant is trying to benefit from plaintiff's creation as his own and trading on the reputation or goodwill of the originator of the creation instead is attempting to profit from the originality or goodwill of itself. If there is copyright in a literary work, and some other person produces or reproduces the work or any substantial part thereof in any material, he is committing an infringement of copyright. 16 Some resemblances with the original is sufficient to indicate that it is a copy and is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 17

When there is substantial similarity and the other party has no evidence to rebut the same in his favour then there is infringement of copyright. The legality of a given work of fan fiction will depend principally on three legal doctrines:
(1) copyright ability of the underlying source work; (2) the derivative work right; and (3) fair use.

The words which create the character also create an image in the mind of the reader, an image which may be more vivid than life. If Author II were to borrow from Author I not simply the name, but many other details from the text including verbatim descriptions of thecharacter, or many textual details by itself, infringing on an authors that embed the character, Author II would be infringing on the copyright of Author I. In Lone Ranger, Inc. v. Currie, 18 defendant enjoined from using the name of the Lone Ranger and from portraying his garb or characteristics; Patten v. Superior Talking Pictures, Inc., 19 defendant enjoined from releasing motion pictures as they used the plaintiff’s main character; Fisher v. Star Co 20 author of cartoon characters enjoined the defendant from using the title of the cartoon and from selling cartoons done in imitation of his cartoons.

In Warner Bros., Inc. v. American Broadcasting Co. 21 , the US court noted that “in determining whether a character in a second work infringes the owner’s character, courts have generally considered the totality of the characters’ attributes and traits. The court found that the infringing work “appropriated the pictorial and literary details embodied in” the copyrights protectingplaintiff’s work.” 22 The similarity in the graphic depiction of a character alone, without the plot elements, may be sufficient for copyright infringement. The defense of fair use by the defendants was dismissed and ruling was passed in favor of the plaintiff. 23

End-Notes
1S. 51, The Indian Copyright Act, 1957
2 Leslie A. Kurtz, The Independent Legal Lives of Fictional Characters, 1986 Wis. L. Rev. 429, 440 (1986)).
3 Gregory S. Schienke, The Spawn of Learned Hand-A Reexamination of Copyright Protection and Fictional
Characters: How Distinctly Delineated Must the Story Be Told? 2005 9 Marq. Intell. Prop. L. Rev. 63
4 Designers Guild Ltd v Russell Williams Ltd 2001 FSR 11.
5 Hollinrake v Truswell (1894) 3 Ch 420 (CA).
6 Leon Kellman, ‘The Legal Protection of Fictional Characters’ [1958] 25 BLR 3.
7Michael Mitchell v British Broadcasting Corporation(2011) EWPCC 42.
8R Radha Krishna v AR Murugados 013-5 LW 429.
9Daily Calendar Supplying Bureau v United Concern AIR 1967 Mad 381.
10John Richardson Computers Ltd v Flanders 1993 FSR 497.
11Raja Pocket Books v Radha Pocket Books1997 40 DRJ 791.
12 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
13 Gaiman v. McFarlane, 360 F.3d 644
14Warner Bros. Pictures, Inc. v. Columbia Broad. Sys. Inc., 216 F.2d 945 (9th Cir. 1954).
15 Dr Vandana Mahalwar, ‘A Quest for Home of Fictional Characters: A Validation for Change in Copyright Protection’
[2014] II JCLC 147.
16Fateh Singh Mehta v OP Singhal AIR 1990 Raj 8.
17 RG Anand v Delux Films AIR 1978 SC 1613.
18 Lone Ranger Inc v Currie 79 FSupp 190 (MD Pa 1948).
19 Patten v Superior Talking Pictures Inc8 FSupp 196 (SDNY 1934).
20 Fisher v Star Co 231 NY 414 (1921).
21Warner Bros Inc v American Broadcasting Cos 720 F2d 231 (2nd Cir 1983).
22 Detective Comics Inc v Bruns Publications 28 FSupp 399 (SDNY 1939).
23 Walt Disney Prods v Air Pirates581 F2d 751 (9thCir 1978).

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