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Jumping the Shark – Can Fictional Character be Protected under Law?

Fictional Character
Image Courtesy – Mark Rise

A fictional character can be described as an imaginary person represented in a play or film which is a work of fiction. At present, there are no specific laws concerning the protection of fictional characters in India but Section 13 of the Copyright Act, 1957 provides protection to original literary, artistic, musical, and dramatic works along with sound recordings and cinematography films.

The fictional character scripts can be protected as literary works and their performance of it can be protected under dramatic works since there are no copyright laws or any other specific laws for fictional characters. Hence there is a need for specific protection of the fictional characters under the Act.

The creators or authors of a particular aspect needs to be respected in all way possible by ensuring the complete protection of the same. This is required to have a completely secure system where the infringement is prevented by utilizing the various resources available. Copyright infringement has become a serious issue in the 21st century that needs to be settled to ensure the smooth functioning of the system.

Copyright Protection for Fictional Character

Intellectual Property

If the Indian case laws are analyzed, it can be seen that required protection is provided for new, original, and different fictional characters as per the legal provisions. Such fictional characters include different aspects which define the whole nature of that particular character. There is no particular exhaustive list regarding the same. In VT Thomas and Ors v. Malayala Manorama Co Ltdthe Hon’ble Court held that even after the termination of the employment contract, the party can carry on the activities concerning characters as a distinction can be made between the literary works of the parties.

The ownership of the fictional characters has to be considered while dealing with such related aspects. The case of Star India Private Limited v. Leo Burnett discussed the issue of copyright of the fictional characters wherein the similarity in the characters was considered. Here the plaintiff sought a restrain to prevent the defendant from telecasting a TV serial that was similar to the plaintiff’s serial. The court held that the characters which are to be merchandised should have some public recognition and have achieved an independent identity of the original product. 

The question of copyright in the fictional characters is often raised where the legal protection of the same has been discussed based on the changing aspects concerning the same. In Arbaaz Khan vs. North Star Entertainment Private Limitedthe plaintiff claimed that the portrayal of the police character in the movie of the defendant was similar to the character in the plaintiff’s movie which was denied by the defendant stating that there are several differences between the characters in the movie.

The court held that the fictional character of the plaintiff was entitled to copyright as the character was unique and the writing of that particular character comes under literary work which is protected under the Copyright Act. While analyzing the concept of fictional characters, it can be seen that the characters have to be given importance and it has to be noted that these characters should be portrayed in a manner where the people should actually feel like fiction coming to life based on the way in which it is shown to the viewers. 

Fictional characters are to be considered as the creation or invention of particular persons and their rights have to be respected for a better functioning system. The works concerning fictional characters are not considered in a proper manner as it is treated with less importance even though there are lots of important creations with time. These fictional characters have an influence over the lives of the people and hence it is important to protect the same in a proper manner. People of any age get attracted to these fictional characters and gain importance based on this demand for the same.

The increase in demand can be regulated through the application of the system in an effective manner where the system is controlled based on the need of the customers. The need of the customers has to be fulfilled by considering the related aspects where the other party is also protected and not harmed in any manner. Such a balanced system is required for the proper functioning of the society where immediate actions can be taken based on the facts and circumstances of the case.

Jumping the Shark – Need to protect the Creative Works

Jumping the Shark
Image Courtesy – Tomislav Zvonaric

The phrase Jumping the shark has been used to argue that a particular creative work is being utilized for generating new attention for something which has gained a lot of popularity earlier and not anymore. Such an action of the people has been described as per this phrase where the unsuccessful attempts have been mentioned based on the facts and circumstances of the case.

In RG Anand v. M/S. Delux Films & Others, it was held that only an unmistakable impression between the original work and the alleged copy can be considered an infringement based on the test where the author of a literary work becomes helpless to protect the character from being used in any other similar manner. Fictional characters are characterized as graphic characters which are represented by cartoons or any other artistic work (Mickey Mouse), literary characters (James Bond), Fictional alter-ego persons (Charlie Chaplin), Human fictional characters (Tarzan), and Non- human fictional characters (Lion King) which shows the broad aspects included under the head of fictional characters. 

It is difficult to understand the concept involved in fictional characters as it is more than just a visual expression where the character evolves through various series based on the story. Such wide application and complexities make the whole creation by the authors more difficult and hence it is important to enhance the protection provided to the authors and their works including literary and artistic works. While dealing with the application of fictional characters in detail, it can be seen that the laws concerning character copyright change from one place to another based on the changing circumstances in society.

In Walt Disney v. Air Piratesthe federal court mentioned the test to be applied to determine copyright infringement of the fictional characters. The comparison of the similarities in the visual aspect and the personalities of the characters were mentioned under the test o determine the nature of infringement based on the case. Such tests are required to determine the copyright infringement involved in fictional characters where the related aspects are analyzed to understand the facts and circumstances of the case. 

The characters shown in movies and available in the form of toys have a great influence on the lives of the people as it shows most of the aspects of society. It can be seen that the entrepreneurs involved in such businesses find a way to commercialize such characters and gain profits based on the demand and availability of each product. The reason for this increased demand is the influence of such fictional characters on the people and the connection it has with the various events happening in the lives of the people. Hence it can be said that it is fair and reasonable to provide the share to the owner of the copyrighted work.

While dealing with copyright infringement, it is said that copyright in a work shall be deemed to be infringed inter alia when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license 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.

Conclusion

While dealing with the fictional characters, it can be seen that the authors require copyright protection of their fictional characters as there have been various instances where the image or name of the fictional characters are misused by unauthorized persons. In the case of copyright infringement, it is said that the parties have to get a license from the owner of the copyright holder to ensure the prevention of such misuse and unauthorized use. 

The authors or the owners of the copyrighted work need to be given the protection required based on the facts and circumstances of the case where the copyrighted work has to be analyzed and given protection if needed. In order to protect the rights of the authors or creators of a particular work, the violation of copyright rights has to be considered seriously. In copyright infringement, there is a need for protecting the rights of the customers to fulfill the expectations of the customers or consumers who form the main part of society. Hence, by incorporating all the other elements in the required manner based on the need and circumstances of each case the entire system can be regulated.

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