This article on ‘Intellectual property rights over fictional characters‘ was written by an intern at Legal Upanishad.
The term “intellectual property” refers to a group of assets that cannot be touched, that a company or person owns and has a legal right to guard against improper use or use by others. Non-physical assets known as intangible assets may be owned by a company or an individual. The concept of intellectual property was developed in response to the belief that some works produced by the human mind should be accorded the same legal protections as material possessions. This article will take a look at, what are intellectual property rights and their infringement, and intellectual property rights over fictional characters.
What is intellectual property?
Intellectual property means anything that an individual or a company has created. It is intangible which means it cannot be touched. It can be music, a movie or any form of digital art. Since these are prone to theft, the creator of this form of art needs some type of protection or rights over intangible property. Businesses go to tremendous lengths to recognize it and preserve it since intellectual property is so highly valued in today’s knowledge-based economy. In addition, creating valuable intellectual property requires a lot of thought and laborious time. This results in substantial outlay by businesses and individuals, which should not be utilized by others without their consent.
Any business that wants to succeed must be able to capitalize on the intellectual property while preventing infringement by others. There are numerous varieties of intellectual property. Even though it is an intangible asset, intellectual property occasionally has a much larger value than a business’s physical assets. Because it can be a source of competitive advantage, intellectual property is carefully protected by the companies who own it.
Types of intellectual property
- Patents- A patent is an investment property right that is often given by a government body. A patent grants the inventor exclusive rights to the invention, which may be a design, a method, an advancement, or a tangible creation like the machine.
- Copyrights- Copyrights give authors and other original content creators the sole authority to use, copy, or replicate their works. Both musicians and book authors have copyright protection for their creations. Copyright also stipulates that the original authors may provide permission to use the work to anybody through a licensing agreement.
- Trademarks- A trademark is an instantly recognizable word, phrase, or design that designates a product and legally distinguishes it from competing goods. When a corporation is granted exclusive use of a trademark, no other party may use or copy the trademark.
- Trade Secrets- A corporation’s procedure or practice that benefits the company or the person holding the trade secret financially is referred to as a trade secret because it is not generally known. Trade secrets are typically the outcome of a company’s research and development and must be actively protected by the business.
Intellectual Property Infringement
Intellectual property rights (IPRs), attached to intellectual property, are specific rights that cannot be violated by people who do not have permission to use them. IPRs let owners prevent others from copying, imitating, and profiting from their creations.
A legally protected patent is violated when it is used without authorization by some other person or business. When an unauthorized person duplicates an original work, such as a piece of music, a novel, or a work of art, they are infringing on the author’s copyright. For the conduct to be considered an infringement, the copied material need not be an exact duplicate of the original. Similarly, trademark infringement happens when an unlicensed party makes use of a mark that is similar to or identical to a licensed trademark.
Intellectual property rights over fictional characters.
The range of what could be protected through the use of copyright law has greatly expanded and changed over time. The imaginary characters that are parts of the creative work are now also protected by copyright law, in addition to a movie or a book. A fictitious character is a made-up individual created as a part of a creative work, which can include but is not limited to a play, movie, or work of literature.
A fictional character is typically portrayed graphically, by an actor, or in the form of a word portrait that includes detailed descriptions of all of the attributes of the character. For example Sherlock Holmes, Batman, Tom and Jerry.
Only the United States has established various criteria to assess whether fictional characters are protected by copyright. A fictional character must be original work, have creative components associated with it, and be depicted in physical media in order to be protected in the US.
At the moment, there are no laws in India that specifically protect fictional characters. The protection of original literary, artistic, musical, and dramatic works, as well as sound recordings and cinematography films, is addressed in Section 13 of the Copyright Act of 1957. The protection of fictional characters may fall under this section’s purview. However, over the years, Indian courts have handed down a number of decisions regarding the copyrightability of fictional characters.
V T Thomas v. Malayala Manorama
The case V T Thomas v. Malayala Manorama was a case in the Kerala High Court. Initially, V T Thomas “Appellant” worked for Malayala Manorama “Respondent” and created a cartoon series on two characters called Boban and Molly which the Respondent frequently published. After his employment with Thomas was terminated by the Respondent, he went to Respondent’s rival company, Kala Kaumudi.
Thomas then created the same cartoons but only for Kala Kaumudi. In response, the Respondents sued the Appellants for copyright infringement, and the District Court granted the Respondents’ request for an injunction. As a result of this, the appellants filed the current appeal with the Kerala High Court. Now the issue was: Can characters be protected under copyright as a subject matter and does an author have the right to continue utilizing particular characters after his employment ends?
In the current case, the terms of the agreement between Thomas and the Respondent fluctuated. Since Thomas invented Boban and Molly before beginning work for the Respondent, the Court believed that only Thomas should be permitted to capitalize on his creations even after leaving the Respondent’s employ. The Respondents would not have any copyright because, according to the Court, they had no involvement in the development of the characters. Only the cartoons Thomas produced while working for the respondents would be protected by copyright; the characters would not.
The Court made a distinction between cartoons created using the characters and cartoons created using the characters alone when deciding whether Thomas could continue creating cartoon strips to be published by the competing publishing business Kala Kaumudi. The court decided that the Respondent would own the copyright to the cartoons created by Thomas while he was working for them because they were artistic works, but that Thomas would own the copyright to Boban and Molly because he created them independently, not while he was working for the Respondent.
It is clear that as the industry of cartoons and other forms of similar entertainment grows in India, there would be a great need for a proper framework which could differentiate the owner of intellectual property. Current cases already show that different courts have different opinions on the question of ownership of intellectual property rights. It’s hard to believe that India still does not have a proper framework regarding copyrights despite having a huge and ever-growing cartoon industry.
- Will Kenton, Intellectual Property, https://www.investopedia.com/terms/i/intellectualproperty.asp accessed 1 July 2022
- Sanjana, Exploring Copyright Protection For Fictional Characters, https://www.mondaq.com/india/copyright/1112382/exploring-copyright-protection-for-fictional-characters#:~:text=Currently%2C%20India%20does%20not%20have,sound%20recordings%20and%20cinematography%20films. accessed 1 July, 2022
- Anushka Iyer, V T Thomas v. Malayala Manorama, https://www.theipmatters.com/post/v-t-thomas-v-malayala-manorama#viewer-3prru accessed 1 July, 2022
- Intellectual Property Laws in India, https://www.indiafilings.com/learn/intellectual-property-laws-in-india/#:~:text=Intellectual%20properties%20rights%20in%20India,The%20Copyright%20Act%2C%201957 accessed 1 July, 2022