Literary works or fictional works fall in the domain of copyright. The question that arises is whether characters of a particular literary can be the subject matter of copyright. There has been considerable amount of deliberation over the issue, but there still has not been any sufficient answer to the question.

The question becomes even more pertinent in the context of the fact that at times the particular fictional character assumes an identity separate from the story. The plot or storyline of the work may be forgotten but the particular character remains etched in the mind of the reader. The creator of the particular character would then obviously want to take steps to ensure that the character remains unique and distinct.

Fictional characters share similar characteristics with graphic characters, but whereas graphic characters are per se copyrightable, fictional characters are not. Further the characteristics of a graphic character are visually apparent, whereas in the case of a fictional character, the imagination of the reader plays a great role in determining the characteristics. The characterization of the fictional character resides in the imagination of the reader and is continually being developed in the reader’s mind by the author’s description of the character as the story unfolds.

This is not to say that fictional characters are not entitled to any protection, but the courts will consider each case on its own merits and then decide accordingly. The character can be protected under trademarks, copyright and unfair competition. 

Copyright Law

Under copyright law the fictional character is usually protected within the literary work in which the character appears. So if the work is copyrightable and there is a substantial similarity between the copyrighted work and the alleging infringing work, then it would constitute infringement. In such a case of infringement, the author or creator will have to merely show substantial similarity between the works and there would be no need to prove any substantial delineation of the characters. The problem arises as to what extent a character has a separate life from the protected work. For example it can be easily said that characters such as HerculePoirot and Sherlock Holmes have acquired a distinct identity. Most readers may not remember all the stories in which they appear, but they would definitely be able to identify and recognize the characters.

Although it is rather evident that copying of a particular fictional character has occurred if one uses identical or substantially similar language to describe their fictional character, but what more frequently occurs is a taking of the more abstract character traits and elements that only conjure up a mental image of that character for the reader.

There are certain characteristics, which are synonymous with the particular type of character. They are general characteristics without which the character cannot be developed.  Such characteristics are essential features of some characters and  if  copyright  protection was given over them, then  it would

result in the curbing of freedom of speech and expression as then no other author would be entitled to use the features. 

In Nichols v. Universal Pictures Corp. (45 F.2d 119) the plaintiff was the author of the play Abie’s Irish Roseabout a Jewish boy marrying an Irish-Catholic girl. The play follows the conflict the couples’union causes within their religious families but ultimately has a happy ending. The plaintiffalleges that the defendant’s motion picture The Cohen’s and The Kelleysinfringed upon herplay. The defendant’s movie was about a Jewish girl and an Irish-Catholic man who marry andthe trouble their marriage causes within their families. The movie also ends happily with thefamilies reconciling.

Justice Hand in explaining why a second work may be similar to an earlier one yet not infringe it, said “ Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out.; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”

He further added that “It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.”

The Courts have since then not taken any consistent view and there have been fluctuating decisions. The Courts have evolved two tests to determine whether a fictional character can be given copyright protection or not.

The Two tests are (1) The Character should be distinctively delineated (2) Story Being told test

Character Delineation test: This test looks at whether the particular character has been developed substantially to afford it protection or whether the character only describes the characteristics particular to the type of character. If the character is merely based on a broad outline of the general description of the type of character, then the character is unworthy of copyright protection. The test has been evolved from Justice Hand’s proposition

In Warner Bros Inc. v. American Broadcasting (720 F.2d 231)Superman was found to be a protectable character based upon the totality of the various traits specific to the character: such as physical looks, costume, physical attributes and “superpowers”.  Similarly in Burroughs v. Metro-Goldwyn-Mayer(683 F.2d 610)the court held that Tarzan was distinctively delineated and sufficiently developed so as to be copyrightable. The Court held that the character was ape-like man, who is able to communicate both with animals as well as with humans and is totally in tune with his surroundings. The judgment has been criticized on the ground that it gives a very general description of the character, which can be applicable to many other characters.

Story Being told Test: This test was first developed in Warner Bros. Pictures Inc. v. Columbia Broadcasting System. In that case the author Hammet had written a mystery novel and a detective known as Sam Spade. Hammet then gave exclusive rights over the book to the plaintiffs. Later on Hammet used the detective in the subsequent stories he wrote. The plaintiff alleged that as they had been given exclusive right over the work, the act of Hammet would constitute infringement. Hammet contented that the exclusive license did not extend to the characters.  The court agreed with the contention of Hammet and held that the plaintiff’s contention was unreasonable. It added that “it is conceivable that the character really constitutes the story being told, but if the character is only a chessman in the game of telling the story he is not within the area of the protection afforded by the copyright and that the characters were vehicles for the story told, and the vehicles did not go with the sale of the story.”

This test has been criticized on the ground that it virtually eliminates any scope of protection for fictional characters. Very few stories would be able to fulfill the requirements of the test as most plots would consist of more than one character and intertwining of stories and characters and thus would not fulfill the requirements of the test.

Trademark Protection

A Trademark is symbol, which distinguishes one producer’s goods and services from another’s. It should be sufficiently distinct and unique in order to enable the consumers to identify the mark with that of a particular manufacturer.

In the case of fictional characters, trademark would be available if the particular character is associated with a product and if the consumers identify the character with a particular product.

Two questions must be answered to determine if infringement has taken place. The first is whether the character has achieved secondary meaning The second question is whether there is a likelihood of confusion or is the use of the character’s name by another likely to deceive and confuse the public as to the source of the goods

In DC Comics v. Unlimited Monkey Business (598 F. Supp. 110) the plaintiff owned the copyrights and trademarks relating to the characters Superman and Wonder Woman. The defendant operated a singing telegram company that featured characters named Superstud and Wonderwench who were dressed in costumes similar to the originals and carried balloons depicting Superman and Wonder Woman. The court found the public was likely to be confused as to the source and sponsorship of the singing telegram service.

The problem with trademark protection is that the burden is on the plaintiff to establish that their character has acquired a secondary meaning and that the consumers associate the character with their product. Thus only well-known marks can take help of this protection. In  Pellegrino v. American Greetings Corp (592 F. Supp. 495)the name Ziggy was not protected even though the defendant had used an identical name in their work. The public did not know the character and so there was no likelihood of consumer confusion.

Is There A Need For Separate Protection For Fictional Characters

Literary or fictional characters should be protected, but the protection should emerge from the protection given to the copyrighted work. A character cannot be seen in isolation, it has to be seen in the context of the plot and the story. The character receives its features and peculiarities from the plot. If a character is taken, but placed in a completely different plot then there cannot be said to be any infringement as the context of the character is completely dissimilar.  The particular features of a Sherlock Holmes are that he smokes a pipe, wears a bowler hat and lives in Baker Street. Now if some author in the context of another mystery story took some of these features, then there would be substantial similarity between the two works and it would constitute copyright infringement.

The character delineation test evolved by the courts is the same as the substantial similarity test under copyright law and thus does not require to be given the status of a separate test. Once the essential elements of a character are reproduced in a similar context, an action for copyright infringement would lie.

A balance has to be drawn between the rights of an author and right of freedom of expression. An author should have right over his work, but it should not extent to such an extent that it curtails the creative process of others. If for example instead of being a taciturn loner, the new Sherlock Holmes is shown as a gregarious man living in New York then obviously there can’t be any copyright protection.

In the case of Filmvideo Releasing Corp. v. Hasting (668 F.2d 91) the court held that the plaintiffs had infringed the character of Cassidy in their motion picture. The character of Cassidy as portrayed in the book was tough, and prone to violence. The character of Cassidy in the movie was clean kind and sentimental. Despite this lack of similarity between the two characters the court held that Hopalong Cassidy in the book was distinctly delineated and that using his character would be copyright infringement “irrespective and independent of the similarity of the story line.”

Thus at times we see that the courts have determined character infringement without even properly comparing the two works. As stated before, the most famous characters derive their features from the story; they are bound to the context. It would be very difficult to imagine the character in a different context and so if the courts don’t compare the works and gather whether there is substantial similarity or not, they might end up refusing protection to some well known characters, who essentially derive their strength from the story.

Further granting copyright protection to fictional characters would curb freedom of expression and limit creativity. A lot of the fictional characters are now in public domain and it would be great disservice to the public if they were prohibited from using such characters. The aim of copyright law is to encourage creativity, but extending it to such an extent is going to have an opposite effect.

BY LAWZ BUREAU