The Conflicting Interests in Copyrightability of Fictional Characters
22 Pages Posted: 20 May 2011 Last revised: 12 Sep 2011
Date Written: May 1, 2011
The commercial and popular appeal of fictional characters far surpasses the characters' role within the original work, and so it is important to ensure that the characters' creators are fairly and uniformly protected from unauthorized exploitation of their creations. This paper is based on the intellectual property law protection that could be granted to graphic and fictional characters that are part of our daily lives. Although fictional characters have become an increasingly pervasive part of the world today, they still do not enjoy well-defined legal protection against infringement. The judgments of various courts have been dealt with in detail to determine the attitude of the courts with regard to this kind of protection. An attempt has been made to find out how distinctly delineated must the story be told from a fictional character to avoid copyright violation. The courts have not been hesitant to develop various tests over the ages to determine whether a character is well delineated or not. So such tests have been vividly dealt in this paper and their sources have been stressed back to respective cases. If the character is found to be extremely well-developed, unique and has a personality different from other characters, only then is a copyright protection granted to such a fictional character.
The paper has been broadly divided into three sections: Part 1 – Dealing with the concept of fictional characters, their components and types, Part 2 – The concepts copyrightability of characters and infringement of such copyright referring to the relevant cases, Part 3 – A comparative study between alternative protection available under other IP regimes and copyright law, Part 4 – the Indian scenario, and finally, the conclusion. Thus, this article tends to explore the availability and weaknesses of copyright law and alternative doctrines in protecting fictional characters, and briefly examines the argument for establishing a separate legal category specifically for fictional characters.
Keywords: Intellectual property, copyright-ability, fictional characters, tests on copyright-ability
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