Protecting Your Fictional Creations: A Legal Perspective on Copyright and Trademarks | BLOG
- Legitimate Scrutiny
- Mar 27
- 5 min read
"A character, to be acceptable as real, should be an individual, and not a type."
— Arthur Conan Doyle
Abstract
Fictional characters have long played a crucial role in literature, cinema, and other creative works, often becoming cultural icons with significant commercial value. However, the legal protection of such characters remains a complex issue under intellectual property law. This blog examines the copyrightability of fictional characters under Indian and international legal frameworks, focusing on the criteria required for their protection. It delves into landmark judicial tests, such as the "story being told" test and the three-pronged approach established in DC Comics v. Towle, to determine whether a character qualifies for independent copyright.
Further, the blog analyzes key Indian case laws, including V.T. Thomas v. Malayala Manorama and Arbaaz Khan v. Northstar Entertainment Pvt. Ltd., to illustrate how courts have addressed the copyright status of fictional characters. It also explores the limitations of existing copyright provisions and the growing reliance on trademark law as an alternative means of protection. Given the evolving landscape of intellectual property rights, this study emphasizes the need for stronger legal safeguards to ensure that fictional characters remain protected from unauthorized usage while balancing creative freedom.
Through a comprehensive analysis of legal precedents and statutory provisions, this blog aims to contribute to the ongoing discourse on the commercialization and protection of fictional characters in India and beyond.
Keywords: Fictional Character Copyright, Intellectual Property Rights (IPR), Copyright Protection for Fictional Characters, Trademark Protection of Characters, Copyright Law and Fictional Works, Legal Protection for Creative Works, Judicial Tests for Copyrightability, Trademark vs. Copyright for Fictional Characters, Indian Copyright Law and Fictional Characters, International Copyright Law, Commercialization of Fictional Characters, Case Laws on Fictional Character Protection, IP Protection in Literature and Film, Berne Convention and Copyright Law, Entertainment Industry Intellectual Property
Introduction
Under our legal framework, fictional characters are not inherently protected. This means that the idea of a character with certain psychological traits—such as an ordinary citizen by day and a superhero by night—cannot be monopolized under intellectual property laws. Copyright protection is granted for various creative works, including literary, musical, dramatic, and artistic compositions. The recognition of fictional characters as eligible for copyright protection arises from the understanding that they can be separated from their original works and gain independent recognition by appearing in subsequent works.
Copyright protection applies to characters described in writing or depicted visually. To qualify, a character must possess original and distinctive traits, though visual representation is not essential.
Legal Provisions and Protection Under Copyright Law
Section 13 of the Copyright Act, 1957, enumerates the types of works that qualify for copyright protection, including original literary, dramatic, and artistic works, as well as cinematographic films and sound recordings. There is no sui generis legislation in India—or globally—that specifically protects fictional characters. Instead, copyright law provides authors with the legal means to control the use and exploitation of their created characters.
According to the Berne Convention, ideas themselves are not copyrightable—only their expression qualifies for protection. Copyright protection for fictional characters allows creators to benefit from their work, maintain control over its development in subsequent works, and prevent unauthorized usage. The assumption underlying this protection is that a fictional character deserves copyright independent of the original work in which it first appeared. While this may seem redundant, a closer analysis reveals that separate protection is crucial both for securing the original work and safeguarding the character as a distinct entity of commercial value.
The Case for Protecting Fictional Characters
A prime example demonstrating the necessity of copyright protection for fictional characters is seen in Marvel characters like Iron Man and Captain America. These characters have garnered immense popularity, generating significant revenue through sequels, merchandising, and other commercial ventures. The critical question in the copyrightability of fictional characters is whether they are mere ideas or expressions, given that they are often part of larger copyrightable works such as literary, artistic, and cinematographic creations. Granting independent copyright protection to fictional characters may, however, create barriers for original works seeking to incorporate these characters. For instance, if a Batman movie was copyrighted along with its characters, subsequent films focusing on Joker as the main character could potentially constitute copyright infringement.
Judicial Tests for Copyrightability of Fictional Characters
Various methods have been devised to determine whether a fictional character can be copyrighted. One notable test is the "story being told" test established in Warner Brothers v. Columbia Broadcasting Systems, which held that if a character is not integral to the story, it is not copyrightable. However, this method was later criticized for disqualifying many characters from protection.
A more refined approach was introduced in DC Comics v. Towle, where the court established a three-pronged test to determine the copyrightability of fictional characters:
The character must have both physical and intellectual traits.
The character must be clearly defined.
The character must be unique and incorporate specific expressive elements.
Judge Learned Hand further developed this demarcation principle in Nicholas v. Universal Pictures Corp., emphasizing that the less defined a character is, the harder it is to claim copyright protection.
Notable Indian Cases on Fictional Character Copyright
One of the first Indian cases to address the copyrightability of fictional characters was V.T. Thomas v. Malayala Manorama, which established that characters can be copyrighted. The court ruled that since the characters were created by Thomas independently and not during employment, he retained the copyright.
In Raja Pocket Books v. Radha Pocket Books, the Delhi High Court considered a claim of copyright infringement involving the character ‘Nagesh,’ which allegedly violated the rights associated with ‘Nagraj.’ Although the court did not explicitly determine whether ‘Nagraj’ was copyrightable, it noted the similarities between the two characters in terms of name, color, and function, suggesting a potential infringement.
In Arbaaz Khan v. Northstar Entertainment Pvt. Ltd. (2016), the Bombay High Court examined whether the character ‘Chulbul Pandey’ from the Dabangg movie franchise was copyrightable. The court concluded that the character’s distinct features and public recognition qualified it for copyright protection.
The Current State of Copyright Protection for Fictional Characters in India
Indian law does not rigorously protect fictional characters under copyright. Although characters may be safeguarded as part of original literary, artistic, musical, and dramatic works, many authors turn to trademark law as an alternative means of protection. However, for a fictional character to receive trademark protection, it must have gained substantial public recognition.
Given the evolving nature of intellectual property law, Indian courts must take proactive measures to ensure stronger copyright protection for fictional characters. This will not only safeguard the creative interests of authors but also enhance the commercial viability of their creations in an increasingly competitive entertainment industry.
Author's Details
Priya Agrawal
The author of the above blog is a Second year law student at Nathmal Goenka Law College, Sant Gadge Baba Amravati University.
Email: priya1407agrawal@gmail.com
Disclaimer: The blog mentioned above has been prepared by the author as part of their internship at Legitimate Scrutiny. The views expressed herein are solely those of the author and do not necessarily reflect the views of Legitimate Scrutiny. While every effort has been made to ensure accuracy, Legitimate Scrutiny assumes no responsibility for any copyright infringement or legal implications arising from this content. Readers are advised to verify information independently and seek professional advice if required.
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