Copyright protection for fictional characters

[1] In the United States, in order to avail of copyright protection, a work must be original; that is, it must involve an element of creativity,[2] and must be fixed in a tangible medium.

[6] Following Nichols, the American judiciary has evolved two main tests to determine whether a character in a work can be eligible for copyright protection.

In Nichols, the United States Court of Appeals for the Second Circuit denied protection to the plaintiff's characters on the grounds that they were not “distinctly delineated”, but poorly developed.

The plaintiff's characters of the Jewish gentleman and the poor Irish Catholic girl he loved were regarded to be no more than mere ‘prototypes’.

[10] The second approach was propounded by the United States Court of Appeals for the Ninth Circuit in Warner Bros. v. Columbia Broadcast Systems.

In this case, the character in question, Sam Spade of the Maltese Falcon detective novel, was held to be a “mere vehicle” for carrying the story forward.

Similarly, the character of James Bond was awarded copyright protection on the grounds of being both sufficiently delineated as well as central to the story being told.

[14] The fact that the character had been played by multiple actors was not held to be relevant since the characteristics associated with Bond had remained consistent across sixteen films.

For example, simple representation of anthropomorphic versions of human emotions by color is not sufficient for copyright without unique characterization traits.

[17] On the other hand, where the characters, like Sherlock Holmes and Dr. Watson are found to be distinctive enough, they are held to be subject matter of copyright, even if they are merely in written form.

[18] Copyright protection may be granted to comic characters where the physical and conceptual characteristics find unique expression in graphic form.

To determine the infringement of the trademark it must be shown that the fictional character has acquired a “secondary meaning”, and that there is a likelihood of confusion to be caused to the public by the defendant's mark which is deceptively similar to the original.

In DC Comics v. Unlimited Monkey Business,[31] the defendants’ costumes were found to present a likelihood of dilution of the plaintiff's trademark in the Superman character.

[34] The Kerala High Court held that the defendant owned the copyright in his cartoon characters that he had created before entering into the plaintiff's employment.

[36] Further, the comparative analysis in Raja Pocket Books to arrive at a conclusion of infringement was undertaken by the Court without firstly stating that copyright subsisted in the plaintiff's character.