#Series – 2- Ironman or Shaktimaan – The difference in the IP protection offered in India and the US?

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Chapter 2: Copyrights and Characters.

Read Chapter 1 for better understanding of the issue at hand and the brief about the whole.

Introduction

Copyright law will possibly ensure the portrayal of a fictional character if the character is depicted in a copyrighted work. One trouble in securing a fictional character under copyright law is that much of the time a fictional character takes on a “real existence of its own” that is free of the story in which it originally showed up. The issue is to secure the fictional character that takes this free life. Another trouble is that occasionally a fictional character, notwithstanding when it is fused in a copyrighted work, is esteemed by the court to not be qualified for copyright protection. Besides, notwithstanding when the fictional character is secured, it habitually gets lesser protection than that concurred to graphic characters.

The fundamental explanation behind this shifting level of security comes from the way that the likenesses between fictional characters are every now and again less concrete than those for graphic characters. Typically, fictional characters are not spoken to by a particular physical picture but rather are just portrayals that show up in the pursuer’s creative ability, and in this manner, distinctive fictional characters are just reflections that can only with significant effort be analyzed.

In spite of the fact that it is fairly obvious that copying of a specific fictional character has happened where one uses indistinguishable or considerably comparable language to depict their fictional character, however, what all the more as often as possible happens is a taking of the more dynamic character qualities and components that just evoke a psychological picture of that character for the peruser. In reality, none of the verbally portrayed qualities of the fictional character are as prevailing as the outwardly delineated attributes of a graphic character, and hence the copyright law distinction between an unprotectable thought and protectable creative expression may prevent copyright law from ensuring the fictional character its protection.

Character Delineation Test

The courts have adopted a “character delineation” test to help them decide whether fictional characters deserve copyright protection. If a fictional character is not developed to the fullest, might lead to the exploitation of such a character and such exploitation would not amount to copyright infringement [1]. The court observed that “[T]he less developed the -characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct [2].” In so holding, the Court observed that the stock characters or underdeveloped characters in a literary work, cannot be eligible for copyright protection. In the Nichols case, the plaintiff alleged the infringement of her play, ‘Abie’s Irish Rose’, by Universal after the production company released a film, ‘The Cohens and the Kellys’, in which the plaintiff saw similarity of plot and characters with her work. Learned Judge Hand while delivering the judgment, said this test is two-part and shall ask, firstly, if the original character’s expression has been sufficiently delineated to be copyrightable and secondly, shall ask if the infringing character’s expression is substantially similar to that of the original character. If the answers to the questions are yes, then such an act would amount to infringement of the original character [3]. Because the characters were not sufficiently delineated, the case was awarded in the favour of the defendants. The test proposed by judge Hand in Nichols did not produce any hard and fast rule as to how developed a character must be in order to be considered copyrightable.

Story Being Told Test

“Perhaps out of frustration, with the lack of clear standards under the Nichols delineation test, the Ninth Circuit proposed a competing test for character protection”, says Bartholomew in his work [4]. The court in the Warner Bros case had proposed the ‘Story Being Told’ test. The case started in 1930 when Dashiell Hammett, sold the motion picture, radio, and television rights to his novel, ‘The Maltese Falcon’, to Warner Brothers Pictures. The studio proceeded to film the three different versions of the novel.  In the wake of the film’s popularity, Hammett entered into a deal with the Columbia Broadcasting System (CBS) for a radio series, ‘The Adventures of Sam Spade’, in which nothing but the character ‘Sam Spade’ was used from the novel. Warner Bros sued CBS alleging that they infringed their rights. The court disagreed that CBS had not infringed on the ground that they have not committed any sort of infringement by using the theme of a detective. If such exclusive protection is given to the plaintiffs, the purpose would not be furthered if an author necessarily sold the future rights to the characters whenever he sold a story. The learned Judge Stephens also has observed that the general characteristics like the smoking of a pipe or an accent of a particular place of a person/character cannot be protected as they do not make the character distinct and if granted protection for such generalized qualities, it shall deprive other authors/makers of their right to make a story in that genre [5]. Such an assessment of the courts is called the “Story being told” test. This Sam Spade standard would lead to a result of excluding virtually all characters from copyright protection because it seems to envisage a ‘story’ devoid of plot wherein character study constitutes all, or substantially all, of the work.

Protection of characters in the United States of America

The basic issue in deciding whether such protection exists is whether the specific character is sufficiently and distinctively delineated with the goal that it warrants security. Since copyright law does not shield ideas from infringement, rather the expression of those ideas, courts won’t ensure character types. In this way, while a court would most likely not stretch out copyright protection to any man with superpowers, the courts have stretched out copyright protection to ‘Superman’ without presenting an imposing business model on the simple character of a ‘Superman’. Hence, the most ideal approach to secure a graphic character under copyright law is to guarantee that the character’s appearance and identity are specific and unique.

            In such a case, the question as to how these characters are protected arises, to which there is no definite answer, but various courts have interpreted this ambiguity differently. In the case of Burroughs v Metro-Goldwyn-Mayer Incorporation [6], it was held that the character ‘Tarzan’ is copyrightable and is protectable from infringement. The court stated that the character was sufficiently delineated from the copyright in the work and also spoke about the qualities he possessed that sufficiently distinguishes the character from the others. This case not only laid down a foundation for authors to protect their work but also faced a lot of criticism in the aspect of defining the delineation of a character. In the Burroughs case, the court accumulated a collection of “ideas” for a stock character but has not defined the essentials for a copyrightable character which might aid the authors for prospective protection.

            The Court has interpreted the protection of these fictional characters basing on the medium they were brought in, i.e., the court offered better protection to those characters and authors who have managed to delineate the character from the plot and as well to those characters who have managed to create a reasonable apprehension in the readers’ mind. For instance, a character which is a literary character might get lesser protection than that that is given to a character which is a cartoon or a graphic representation and vis a vis a cartoon character might get lesser protection than given to a character in a motion picture. To enable such protection, the authors should have to fulfill the story being told test or the character delineation test [7]. Thus, a visual similarity with a similarity in character traits may prove sufficient to constitute an infringement irrespective of the names assigned to such characters [8].

            In the case of Anderson v Stallone [9], the court in this case could not determine which test was proper and hence used both tests to check if the character “Rocky” deserved copyright protection. While hearing the case, the court observed that the characters in the movie were a set of highly delineated set of characters in Modern American Cinema and hence qualified the character delineation test. In so holding, the court also praised the character design of Rocky which had been tremendously detailed with his physical appearance and also his emotional traits. The Court remained silent on whether other characters deserved copyright protection independently but has said that these groups of characters in the movie deserved copyright protection. The Court further observed that these characters were so highly developed and central to the plot of the movie that these characters deserved copyright protection [10].

            In the case of Warner Brothers Incorporation v Film Ventures International [11], the plaintiff held the copyright in the movie “The Exorcist”, it had featured a character called Regan, a child who was overcoming demonic possession with the help of her Jesuit. Later another movie in the same genre was released with a similar storyline to which the plaintiff initiated a case of copyright infringement stating that the character Regan was copied into the defendant’s movie. The court observed that Regan did not deserve copyright protection as the plaintiff had not sufficiently delineated the character Regan and also relied on the Warner Brothers Pictures v Columbia Broadcasting Systems [12], for the proposition that it does not qualify for the story being told test.

            In the case of Universal City Studios v Kamar Industries [13], the Court held that the movie character E.T was protected by copyright because it was more than a vehicle in delivering the story to the audience and hence qualified the story being told test. In so holding, the Court laid down a rule that a character in a motion picture can only be protected if it is more than a vehicle in telling the story. Contrary to that holding, the court in the case of Ideal Toy Corporation v Kenner Products [14], the plaintiff made dolls which resembled the characters from the popular movie ‘Star Wars’ to which the defendants were licensees, the Court analyzed that a character which is visually depicted in the movie if to be offered copyright protection shall depend on the degree of the development of the character and subsequently held that the characters in the movie and the dolls were substantially different and denied recovery for the copyright infringement.

Protection of characters in India

            The situation in India is comparatively different than what it is in the United States of America. India is growing steadily and the need for protection of fictional characters is necessary and the time has arrived where the Indian Judiciary shall look into these matters and define the essentials for protection of these fictional characters. Characters like Chhota Bheem, Shakthiman, Mowgli, etc. are viewed regularly in the country and in this digital age, the protection that these characters deserve is definitely high. The judicial recognition of copyright existing in literary and fictional characters were highlighted in Arbaaz Khan v North Star Entertainment Private Limited [15], where the Bombay High Court while examining whether copyright would subsist in “Chulbul Pandey” from the Dabbang franchise opined “As to the general principle that the character is unique and the portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection. 

Read about the failed RTE and NEP and it’s critical analysis grounded in reality.

          The Delhi High Court in the case of Sholay Media and Entertainment Private Limited v RGV Productions Private Limited [16], slapped a fine of Rs. 10 Lakhs as punitive damages on Director Ram Gopal Varma for “intentionally and deliberately” coming out with the remake of the 1975 blockbuster ‘Sholay’, for violating the exclusive copyright vested with Sholay Media and Entertainment Pvt Ltd and for misusing the characters of Gabbar Singh, Jai, Veeru, Radha.  Justice Manmohan Singh in his dicta observed that “The publicity material coupled with the impugned film, gives an overall impression that it is a remake of the film Sholay. The use of similar plot and characters in the impugned film coupled with the use of the underlying music, lyrics and background score, and even dialogues from the original film Sholay amounts to infringement of the copyright of the film Sholay.”  The movie was initially titled ‘Ram Gopal Varma ki Sholay’ and it was later renamed as ‘Ram Gopal Varma ki Aag’ after a suit was filed against RGV Productions Private Limited for infringement of copyrights of the movie title possessed by Sholay Media and Entertainment Private Limited and after eight years, RGV Productions was sued again by Sholay Media and Entertainment for infringement of copyrights of the story, music, dialogues and characters and that resulted in the recent judgment. It is also an infringement of the moral rights of the makers of the movie ‘Sholay’. According to Section 57 of the Copyrights Act, the author has the right to paternity and the right to integrity. The right to paternity is a right given to the author/creator of the work to claim ownership whereas the right to integrity is the right given to the author/creator to restrain or claim damages in the event of any distortion, mutilation, modification or any other untoward act done to his work. Thus, the need for jurisprudence in regard to the protection of these characters is needed in India, as the authors/creators have fewer or no options to invoke in case of an infringement of a character.

Conclusion

The most recent judgment of a Court in the United States of America, where the Court allowed copyright protection to the ‘Bat Mobile’ ridden by the Batman himself shows that the Court is still following either of the tests to grant copyright protection to characters [17]. The defendant used to run a business of selling replicas of vehicles that appeared in popular movies and in the same way sold the Bat Mobile replicas as well, without authorization to which the plaintiffs responded immediately and filed a case against the defendant. The Court held that the ‘Bat Mobile’ is sufficiently distinctive from the plot and hence can be awarded copyright protection. Hence, in such a situation where the automobiles that the characters drove in a fictional story are given copyright protection, the time has come to renew the copyright laws comprehensively to accommodate all kinds of possibilities so that the authors are not deprived of their protection.

Up next: How have the courts interpreted the overlap of these Intellectual Property Rights in the United States of America?

THIS IS PART OF MULTI PART SERIES. STAY TUNED!


[1] Kenneth E Spahn, ‘The Legal Protection of Fictional Characters’, (1992) 9 University of Miami Entertainment & Sports Law Review 331 <http://repository.law.miami.edu/umeslr/vol9/iss2/6 > accessed 25 October 2018

[2] Universal Pictures Corporation v Nichols (1930) 45 (2) Federal Reporter 119

[3] Gregory Schienke, ‘The Spawn of Learned Hand-A Re-examination of Copyright Protection and Fictional Characters: How Distinctly Delineated Must the Story Be Told?’ (2005) 9 Intellectual Property Law Review 63 <http://scholarship.law.marquette.edu/iplr/vol9/iss1/3> accessed on 5 May 2019

[4] Mark Bartholomew, ‘Protecting the Performers: Setting a New Standard for Character Copyrightability’ (2001) 41 Santa Clara Law Review [341 – 347] <https://digitalcommons.law.scu.edu/lawreview/vol41/iss2/2> accessed 4 May 2019

[5] Warner Brothers Pictures v Columbia Broadcasting Systems [1954] 9th Circuit 216 (2) Federal Reporter 945

[6] [1981] The United States District Court for the Southern District of New York 519 Federal Supplement 388

[7] Niro DD, ‘Protecting Characters through Copyright Law: Paving a New Road upon Which Literary, Graphic, and Motion Picture Characters Can All Travel’ (1992) 41 DePaul Law Review 37 <https://via.library.depaul.edu/law-review/vol41/iss2/4> accessed December 2, 2018

[8] Walt Disney Productions v Air Pirates [1978] 9th Circuit 581 (2) Federal Reporter 751

[9] [1989] 11 United States District Court for the Central District of California 11 (2) USPQ 1161

[10] Ibid at 1167

[11][1975] United States District Court for the Central District of California 403 Federal Supplement 522, 525

[12] Ibid

[13] [1982] 217USPQ (BNA) 1162

[14] [1977] United States District Court for the Southern District of New York 443 Federal Supplement 291

[15] [2016] Notice of Motion (L) No 1049 of 2016 in Suit (L) No 301 of 2016

[16] [2015] CS (OS) No1892/2006

[17] DC Comics v Mark Towle [2015] 9th Circuit 802 (3) Federal Reporter 1012

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