Fictional characters like Ironman, Batsman, Mickey Mouse, James Bond, Harry potter are not just characters but are cultural heuristics. All of us in day to day life connect ourselves with these characters on a personal level, and also sometimes get inspired by these characters. These characters are irreplaceable to such an extent that the work loses its plot and all that remains is the mere “idea”. A classic example of this is Captain America from Marvel studios and Salma Khan in Dabbang.
Fictional characters or the work of fiction have the ability to connect themselves to the lives of the reader in a manner that engages them both emotionally and mentally. Suzzane Keen said that “even though readers know perfectly well that fictional characters are make-believe, they go on caring about them, lending them the bodies that they do not possess, feeling with them in an emotional fusion that paradoxically calls into embodiment a psychic corporeality vouched for in readers’ own bodily responses.”
Now the question arises why there are restrictions in providing copyright protection to these fictional characters. The reason behind this is as per conventional idea of copyright which basically confers such exclusive right only when a literary work is not a mere idea but is reduced in a manner that it can be called an “expression of idea”, fictional characters are merely the ideas in the mind of the author.
Copyright registration protects the original and creative works of the author and not the mere idea, expression, methods of operation or mathematical concepts. The law is stringent upon the principle which protects only the expression of the ideas so formulated but not the general idea that belongs to the public domain which forms only an element of work or some concepts which underlies such work.
The infamous case revolving around the protection to Batmobile which although wasn’t a personality intrinsically but a high-tech automobile of the character Batman developed by DC Comics, led to the pronouncement of three tests for the aim of determining whether a personality is copyrightable or not. The tests were as follows:
the character must possess both physical and conceptual traits;
- the character “must be “sufficiently delineated” to be recognizable because an equivalent character whenever it appears” – to the extent appearance of the character changes, the attributes must be consistent and identifiable; and
- the character must be “especially distinctive” and “contain some unique elements of expression.”
The position in India with reference to the copyright-ability of a fictitious character is not any different and therefore the Indian Courts have demonstrated an identical stance. The infamous daily soap, as we all know, called “Kyun Ki Saas Bhi Kabhi Bahu Thi” was denied relief when another daily soap “Kyun Ki Saas Bhi Kabhi Bahu Banegi” portrayed a uniform character, on rock bottom that the character wasn’t merchandised enough to understand public recognition and went on to observe that “the characters to be merchandised must have gained some public recognition, that is, achieved a kind of an independent life and public recognition for itself independently of the primary product or independently of the milieu/area during which it appears.”
I, for one, don’t accept as true with this judgment of the court primarily because the show was iconic and thus the characters like Mihir and Tulsi were popular enough to be recognized independently. However, the Court recognized that the character of Salman Khan, i.e., Chulbul Pandey in Dabangg was entitled to protection and went on to observe that “But on the overall principle that the character is exclusive and thus the portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection are some things that i feel I can safely accept. it might be, I think, stretching it too far to say that such a completely developed and uniquely depicted character because it’s ‘merely a character’, falls wholly outside the realm of all protection.”
Similarly, within the case of Raja Pocket Books v. Radha Pocket Books, the Court recognized that fictional characters were actually copyrightable. During this case, the character in question was that of “Nagraj”, which was copied by Defendant and represented in his comic books as “Nagesh”, was provided relief on the bottom that the 2 characters were deceptively similar. The Court by taking into consideration the principles of comparison adopted in R.G. Anand, went on to observe that “Nagraj and Nagesh having the same meaning, namely, Kingsnakes; Colour of comics is additionally green, gauntlets are ripped in both cases, functionally, both are capable of doing same and similar work, namely, scaling the walls and thus the roofs alike, hurling snakes, causing the objects to melt and thus the snakes capable of returning back and merging within the body of the character. For the aim of climbing, both use the same material, namely, rope within the type of a snake.”
In the words of Tyrion Lannister, Game of Thrones, “there’s nothing more powerful than an honest story.” Copyright protection of fictitious characters must be acknowledged as an exercise so as to balance the interests of the general public also as if the authors and authors are, therefore, advised to form their characters distinctive.
Having said that, it should be better to possess one, uniform standard of copyright, instead of using graphic characters as compared with authors who choose representation during a literary form, as a rather easier path through the waves of copyright legislation, as they’re all fictional characters at the highest of the day and can therefore be placed under one screen to guard them in legal order. This type of inequity should be remedied by the courts because it makes it unnecessarily difficult to follow the road to owning one’s own work.