Where To Draw The Line: Copyright Over Characters

Indian courts, as opposed to US district and circuit courts, have left various questions unanswered when it comes to infringement and copyright protection of characters both literary and nonliterary...

Recently, the trailer of a Bollywood movie "Jagga Jasoos" starring Ranbir Kapoor was mired in controversy, as the trailer contains scenes which are very similar to the movie "Adventures of Tintin". In addition, the character of Ranbir Kapoor, in the movie, bore similar characteristics/traits (such as having a similar hairstyle) to that of Herge's star detective.

Overall, the law with respect to copyright protection of characters is quite underdeveloped in India. The Courts in India seem to have implicitly accepted that copyright protection that is afforded to the work extends to the characters created as well1. The Courts still have to decide on the manner in which they wish to go about protecting fictional and graphic characters, i.e., which set factors or tests will they take into consideration while determining whether and when, a new character will infringe the original character.

copyright over characters has not evolved much beyond the general rule in copyright law, i.e., the "idea/expression" dichotomy. As a general rule in copyright law, the "idea/expression dichotomy" holds that ideas are never copyrightable, though the expression of those ideas may be subject to copyright protection. The same rule has been applied to copyright in characters, i.e., the character only becomes protected under copyright law once it becomes a unique expression. Though there is nothing wrong with the said rule, there are a lot of questions than answers. Precisely where should the line between idea and expression be drawn has been a point of debate for many jurists, judges, owners and artists. Nobody has ever been able to fix that boundary, and nobody ever can.

Indian courts will need to balance the interests of all players – copyright owners, authors, and the consuming public – to figure out how much protection characters deserve in the new digital frontier. One of the prominent questions for creators and owners of characters is: What features and qualities must a character have to receive copyright protection and how far does that protection reach?

Introduction

Section 13 of the Copyright Act, 1957 ('Act') provides that copyright subsists in original literary, dramatic, musical and artistic works, cinematographic films, and sound recordings. It does not expressly provide protection for characters that are created and subsequently develop secondary characteristics due to their roles in the works that they were created in.

However, characters in movies/TV series/books/comics are protected by copyright law because of the copyright in the film/script/artistic work, but only to the extent of the creative expression of the author, i.e., the author must describe the character with sufficient originality and distinctiveness.

Stock characters are considered to be mere representation of ideas and not considered to be forms of unique expression. As a result, concepts such as aliens, drunk men, wizards, vampires, corrupt politicians [and] dragons don't give rise to the standard of creativity until the owner/author adds something more or expresses that concept. Therefore, a single-dimensional "flat" character that embodies an "idea" is not copyrightable.

An analysis of the US cases would certainly lead one to the conclusion that courts have tended to deal with graphic characters rather differently than they have with literary characters. Literary characters (such as Harry Potter, Moby- Dick, Sherlock Holmes - Professor Moriarty, and Victor Frankenstein) are the ones depicted through both narrative and dialog in a narrative work of art, such as a novel/ book. Graphic characters, on the other hand, are sketched/ drawn on paper or depicted by a cartoon or other graphic descriptions (such as a character in a play, television series, or movie). It is much easier to claim copyright protection for a graphic character, as opposed to a literary character.

While Indian Courts are yet to lay down the conditions for a character to qualify for copyright protection and rules to determine infringement, American Courts have formulated a few tests that have been described herein below -

Substantially Similar Test

This test involves a subjective and visual comparison of the new character with the original character. In the case of a graphic character, the characterization is acquired through its physical depiction. Hence, if the new character is substantially similar to the original character, then the new character is infringing. There is no concrete threshold for how similar a work has to be a copyright violation. Further, this dictum raises the issue of whether similarity of appearance by itself is sufficient for a finding of copyright infringement liability.

As per various judgments, Courts in many jurisdictions have gone beyond the simple comparison of the character's physical features. The Courts tend to take into consideration the character's personality, pattern of speech, costume or other clothing, personal history or back-story, abilities or "superpowers", and other traits.

One of such judgments on character protection is given by the Circuit Judge in Walt Disney v Air Pirates². In the present case, while the characters were not copied in the sense that they were photographically reproduced, they were drawn as nearly like the plaintiff's drawing as the defendant could make it. However, the "theme" and "plot" of the defendants' publications differ markedly from those of the plaintiff.³ The defendants had argued that the plaintiff's characters, as distinguished from the whole copyrighted work, are not protected by copyright statutes, that even if they are protected, the use made of them here was fair use. The court rejected the defendant's fair use defense, and held that one has to consider the character's personality and other traits in addition to its visual similarities. Thus, in addition to visual similarity, there must be a similarity in personality and character traits, to constitute an infringement. In other words, such antics and personality traits increase the extent of copyright protection provided to a character.

In Warner Bros., Inc. v. American Broadcasting Cos.⁴, the court noted that "in determining whether a character in a second work infringes a cartoon character, courts have generally considered not only the visual resemblance but also the totality of the character's attributes and traits."

Generally speaking, it seems that courts evaluate "substantial similarity" for cartoon characters on a sliding scale between visual and literary similarities: the more similarities in one, the less similarities you need in another. One of the problems with "substantially similar" tests is a finding of copyright infringement that can arise when the defendant takes even un-copyrightable elements of a plaintiff's work, i.e., when the similarities tend to be general things, universal concepts, and stereotypical characters. Hence, Judges have discussed the difficulty in copyright cases in drawing the line between the taking of general concepts and copying in an infringing manner. The test of substantial similarity works best in a situation in which something has been literally/verbatim taken, and the Court can weigh the substantiality of the amount taken by comparing the two works. However, this test cannot be applied to determine infringement when non-literal copying takes place.

Well-Delineated Test/Especially Distinctive Test/Judge Hand's Abstractions Test

Some courts have adopted a "character delineation" test to help them decide whether graphic/fictional characters deserve copyright protection.

This test was developed by Judge in Nichols v Universal Pictures Corp⁵. The critical issue in determining if such protection exists is whether the particular character is sufficiently and distinctively delineated so that it can be afforded protection. As the copyright law does not protect ideas from infringement, but instead only protects the expression of those ideas, courts will not protect character types. A literary character can be said to have a distinctive personality, and thus to be protectable, when it has been delineated to the point at which its behavior is relatively predictable so that when placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising⁶. In the present case, the Plaintiff was the author of a play, "Abie's Irish Rose". The Defendant produced a motion picture, "The Cohens and The Kells," which had a similar plot to the Plaintiff's play. The Court held that both stories were very different, and the only similarity was that both plays portrayed stories of a Jewish and an Irish-Catholic family in which the children fall in love and are married, their parents are outraged, a grandchild is born, which is then followed by a reconciliation.

The Court held that the test to determine copyright infringement cannot be limited literally to the text, else a plagiarist would escape by immaterial variations such as exercising a separate scene or appropriating part of the dialog⁷. The Court further held that the test of determining whether the part so taken is "substantial," and therefore not a "fair use" of the copyrighted work, is more troublesome in a situation when the plagiarist does not take out a block in situ, but an abstract of the whole.⁸

Judge Learned Hand established the test that for copyrightability of characters, i.e., a character must not be a stock character to be copyrightable, and must be sufficiently delineated, i.e., "the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly."

This is also considered as an "abstractions" test - as to determine whether the character or plot, at the level of abstraction at which it is copied, represents idea or expression. Judge Learned Hand therefore laid down that the concepts of "abstractions" test is different to "substantial similarity" test and are to be applied in different types of infringement cases. Substantial similarity is appropriate for determining whether portions taken directly from the original work are infringing; but this test is inapplicable, however, when the plot outline or generalized character is taken. In such cases, a different test - that of idea - expression - must be used to determine the extent to which the copyrighted work represents an idea or its expression⁹.

The difference between these two tests seems to be that the idea of a play or a character can be determined by reference to how well delineated it is in the original. Further, one of the positives with this test is that the Judge considers the possibility that the original characters or plot as expressions are copyrightable or not, i.e., whether the character is an idea or a unique expression.

Story Being Told Test

This test was propounded in Warner Bros. v. Columbia Broadcasting System¹⁰. In the present case, Warner Bros. bought a license for a novel called the "Maltese Falcon". As per the Plaintiff's claim, by virtue of this license, they had gained exclusive rights over the character of Sam Spade as well and that the author was not entitled to sell a license to use a character "Sam Spade" to Columbia Broadcasting System without their permission. Plaintiff Warner pointed to numerous similarities between situations arising in the broadcasts and those occurring in the novel "Maltese Falcon". Defendants referred to the novel "Maltese Falcon" to obtain accurate characterizations of "Sam Spade" and the lesser characters of the work. Further, they drew upon the public domain, including the Bible, for the plot situations presented in the broadcasts. The Court rejected Warner Brothers' claim and stated that "a character may be copyrightable if it, in a meaningful way, constitutes the "vehicle of the story" as opposed to a simple "chessman", i.e., the characters in the present case were vehicles for the story told, and the vehicles did not go with the sale of the story. This implies that the story must be centered on the character in order for it to be copyrightable.

In my view, this test will not always give the correct assessment as to whether a character is entitled to copyright. For instance, characters which are sufficiently developed but are not the main character will not be afforded protection.

Indian Perspective

The judicial recognition of copyright existing in literary characters was highlighted in Arbaaz Khan v. North Star Entertainment Pvt. Ltd¹¹ (2016) by the Bombay HC. The subject matter of the dispute was whether a copyright would subsist in one "Chulbul Pandey" from the Dabangg franchise and further, whether the same was infringed by the Defendants in their forthcoming film 'Sardar Gabbar Singh'. As per the Plaintiff, there were various features that made the character of "Chulbul Pandey" supposedly unique. For instance, he was corrupt but fearless; had a troubled relationship with his stepfather and half-brother; he called himself "Robin Hood" Pandey; he had what is described as a unique, funny and bizarre way of dealing with rough elements. Further, the character had a unique dance style. The entire character of Chulbul Pandey was that of an endearing, loving and funny police officer, a spontaneous and peculiar laugh adds charm to his steps.

The Hon'ble Judge held that it is "possible to hold copyright not just in a literary work, but in a character. I understand this to mean the realization of a persona with iconic characteristics and traits that make him or her unique. The screen persona of Rocky from the Rocky franchise, James Bond from the film franchise (distinct from the literary character), certain characters from the Star Wars series (Darth Vader, Obi Wan Kenobi, Han Solo, Chewbacca, and others), ……are all possible examples". However, the Judge declined to hold that character 'Sardar Gabbar Singh' of the Defendants was infringing 'Chulbul Pandey', at the interim stage¹².

The Judge opined that aspects of 'Chulbul Pandey' characters that taken individually or even collectively are not so unique that none could take one or the other or even all of them without infringement (such as to say that both Chulbul Pandey and Gabbar Singh wear their uniforms in a casual manner is hardly unique). Further, the Court felt that there were a lot of dissimilarities, (such as mannerisms, qualities and, most of all, his core value system, his moral compass: where Chulbul Pandey is fearless but corrupt, Gabbar Singh is fearless and honest). The Court added that what is similar is that there are certain generic elements that are described. Further, the Court held that Gabbar Singh portrayed, is a completely unique character meant for a totally different audience, conceived differently but based on a story line developed for the first Dabangg film.

The question of what makes a character capable of protection under the copyright regime was also discussed in Start India Pvt. Ltd v. Leo Burnett¹³ (2002). It was the case of the plaintiffs that the comparison of the plaintiffs' serial "Kyun Ki Bahu Bhi Kabhi Saas Banegi" with the defendant's Tide T.V. commercial would show that there is substantial copying. It was also averred that the Defendants by telecasting/broadcasting the commercial with the title "Kyun Ki Bahu Bhi Kabhi Saas Banegi" with identical characters. viz., Tulsi, Savita and J.D. are deliberately and dishonestly seeking to trade upon and misappropriate the reputation and goodwill of the said serial and its characters.

The Defendants averred that even assuming that there are some features of defendant Tide T.V. commercial found in the serial, of the plaintiffs, even then the alleged copying does not amount to a reproduction or substantial reproduction of the plaintiffs' serial, that is, alleged copying, if any, is of an unsubstantial part of the serial and, hence does not amount to infringement. The court held that "The characters to be merchandized must have gained some public recognition, that is, achieved a form of independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears". If this test of 'state of mind of public' is applied, it will be clear that the public associates the characters Tulsi, Savita and J.D. with the plaintiffs' serial alone. The presence of these characters acted by the same actors in the defendants' commercial will lead to an inference that there is a connection between the plaintiffs' serial and the defendants commercial and in any event, will mislead the public in believing such a connection.

Conclusion

From the above discussion, it seems sufficient to note that the Indian courts as opposed to US district and circuit courts have left various questions unanswered. For instance, which exact parameters required in conclusively determining whether a character deserves copyright protection, [and] which rule or legal standard to apply in case of a suit for non-literal infringement. Further, the question of whether a similarity of characters may be infringing consisting merely of graphic depiction/visual expression or whether in addition to similarity of physical image, there must also be similarity of the character's mood, personality, pattern of speech, abilities, and other traits, i.e., that will evolve from the various episodes created by the artists.

For cases having literal similarities, determining whether a copyright has been infringed is often straightforward. But when there is no verbatim copying between the works at issue, ruling on infringement claims becomes more difficult. Each character and case is to be evaluated based on its own qualities and context. Courts should perform infringement analysis as per the nature and characteristics of work, i.e., whether it's factual, artistic work, literal, play/story.

The US Supreme Court has twice endorsed a two-step test for infringement, first requiring proof of "ownership of a valid copyright," and second, copying of constituent parts that are original¹⁴. However, this test has not caught on in India. Indian courts usually rush into the second stage of analysis instead of first considering whether the original character under question deserves copyright protection or not.

There have been instances where a single or few character trait(s), rather than the entire character may have been copied and incorporated in a new work, and the defendant has gotten away with it by taking the plea under the doctrine of fair use. However, this may sometime lead to infringement of copyrighted characters. It is the prerogative of the courts to keep in check that such tendency of a defendant does not exploit the copyright characters of the owners/artists. Nonliteral infringement rules mentioned herein in this article, discourage the making of close imitations by those seeking to evade liability through modest variations or addition of extra detail.

We can only hope that the Indian Courts put the right foot forward - lay the right law and follow the right rule/legal standards while determining copyright infringement of characters.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.