IPR Project

PROJECT ON
PROTECTION OF CHARACTERS UNDER

THE COPYRIGHT REGIME
Submitted To
MS. Aparajita Das
(FACULTY OF INTELLECTUAL PROPERTY RIGHTS)
Submitted By
Vimal Garva
ROLL NO. – 178
SEMESTER – VII
HIDAYATULLAH NATIONAL LAW UNIVERSITY
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PROTECTION OF CHARACTERS UNDER THE COPYRIGHT REGIME
ACKNOWLEDGEMENTS
To start with at the very outset I would like to thank all people who have helped me in the
making of this project. Then very humbly going into special addressing I would like to profusely
thank my faculty in charge of Intellectual Property Rights (Copyright), Ms. Aparajita Das. The
staff at the computer lab and library of the university has also extended their total co-operation.
The friends circle have always maintained an academic atmosphere and created new ideas and
lines of thought for the betterment of this project. Indeed it would be very apt to state here that
without the healthy support lent out to me it would have been a failed project which it has
hopefully not become and in fact gone in the opposite direction and become a good one.
Vimal Garva
Semester VII
Roll No.- 178
INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

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DECLARATION
This is to certify that project report titled “PROTECTION OF CHARACTERS UNDER THE COPYRIGHT
REGIME” which is submitted by me comprises only my original work and due acknowledgment
has been made in the text to all other materials used.
Vimal Garva
METHODOLOGY
The method of research for the project is doctrinal and the author has basically relied on the
secondary sources of research like books, internet and other such resources.

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TABLE OF CONTENTS
TITLE PAGE NO.
LIST OF ABBREVIATIONS & ACRONYMS 5
INTRODUCTION 7
ESSENCE OF A FICTIONAL CHARACTER 7
TYPES OF CHARACTERS 9
● GRAPHICALLY REPRESENTED
● LITERARY CHARACTERS
PROTECTION OF A CHARACTER UNDER COPYRIGHT LAWS 12
● OF GRAPHICAL CHARACTERS
● OF LITERARY CHARACTERS
TESTS EVOLVED BY COURTS 19
● EXTRINSIC& INTRINSIC TEST

● ABSTRACTION TEST
● DISTINCTIVE DELINEATION TEST
● STORY BEING TOLD TEST
COPYRIGHT ACT, 1957 & PROTECTION OF CHARACTERS: HOW EXTENSIVE IS 24
THE INDIAN LAW?
● DETERMINING OWNERSHIP OVER THE CHARACTER

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● ADAPTATION OF CHARACTER
CASE LAWS & JUDICIAL PRONOUNCEMENTS 27
CONCLUSION 33
BIBLIOGRAPHY 34
LIST OF ABBREVIATIONS& ACRONYMS
&………………………………………………………….…………………………………and
A.C. …………………...……………………………Law Reports, Appeal Cases (Third Series)
AIR…………………………………………………………………………...All India Reporter
All. ER……………………………….…………………………………...All England Reporter
All……...……………………………………………………………………………..Allahabad
ALR……………………………………………………………………..American Law Review
App Div……………………………………………………...………………Appellate Division
App……………………………………………………………………….……………Appellate
Bom……………………………………………………………………..………………Bombay
C.L.R……………………………………………………………………Common Law Review
Cal………………………………………………………………………………………Calcutta
Cas……………………………………………………………...……………………….….Case

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Ch………………………………………………………………………………………..Chapter
Cir.…………………………………………………………………………………...…Circular
CLJ………………………………………………………………..……......Common Law Journal
Co………………………………………………………………………………………...Company
Comm…………………………………………………………………...…….……....Commentary
Corp……………………………………………………………………………………Corporation
Dept……………………………………………………………………………………Department
E.C.R. ……………..………………………………………………........European Council Review
E.I.P.R………………………………………….………….European Intellectual Property Review
F. Supp….…………………………………………………….……………….Federal Supplement
Hrs. ……………………….………………………………………….………………………Hours
Inc…………………………………………………………………………………………Inclusive
JIPR………………………………………………………..Journal of Intellectual Property Rights
L Ed……………………………………...United States Supreme Court Reports, Lawyers Edition
L. R……………………………………………………………………………….……Law Report
L.Q.R. ………………..……………………….………………………...London Quarterly Review
Pvt……………………………………………………..…………………………...………private
Q.B….…..………………………………………………..……………………….Queen’s Bench
Rep..……………………...………………………………..……………………….representative

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S Ct………………………………………………………Supreme Court Reporter(United States)
s….……………………………...………………………………………………………….Section
SC…………………………………………………………..……………………..Supreme Court
SCC……………………………………………………………..………….Supreme Court Cases
Supp…....……………………………………………………………………….…Supplementary
v….……...…………………………………………………………………….……………versus
W.L.R……………………………………………………………….………..Wales Law Review
WL…………………………………………………………………………..Westlaw Transcripts
INTRODUCTION
‘Fictional characters are second-class citizens in the world of intellectual property’.
1
This statement might be the best and most appropriate starting-point of this work.
Increasingly, the commercial and popular appeal of fictional characters far surpasses the
characters’ role within the original work. Thus it is important to ensure that the characters’
2
creators are fairly and uniformly protected from unauthorized exploitation of their creations.
Characters are often the best remembered part of a work of fiction and today literary and
cartoon characters, particularly in television films, are very often the most valuable portion of
the specific works or properties of which they are part; authors of original works of fiction
have a proprietary and financial interest in the characters that populate their works; they
could form the basis of sequels and they are the principle objectives of movie producers.
1
David B. Feldman, ‘Characters: A proposal for change in Copyright Protection’, 78 California Law Review 687
(May 1990).
2
David B. Feldman, ‘Finding a home for fictional characters’ as available at http://www.jstor.org/pss/3480842

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The project examines the current legal protections available for fictional characters. The
various ways in which Courts have applied copyright laws to character protection has been
examined and highlighted. It is argued that the lack of expression of copyright protection for
fictional characters has resulted in inconsistent and inadequate legal protection. In order to
properly shield characters and guide Courts in their adjudication of character infringement
cases, the Government should amend the 1957 Copyright Act by creating an express subject
matter category exclusively for fictional characters.
ESSENSE OF A FICTIONAL CHARACTER
A fictional character is an intangible artistic creation which relies upon the writer’s words for
any visible existence. The author evokes a mental image of a character for the reader and
must convey his ideas adquately if people are to recognise the character as he intended him
to be portrayed.
3
The multiple aspects of a fictional character include the outer or objective individual and the
inner or subjective person. The first category includes such aspects as physical appearance
and biographical data. The second grouping involves such intangibles as the content of
philosophical attitudes and the emotional dynamics manifested by interpersonal
relationships. These revelations of the pshycological aspects of the character give the reader
a key to the future actions and reactions of the figure.
The well-defined ficitional character is the creator’s valuable asset, for which statutory
copyright protection is sought. A sensible diving line on the sliding sclae between a
3
James Robert Parish, ‘Statutory Copyright protection of Fictional Characters’ as available at
http://ipmall.org/hosted_resources/IDEA/pdf/8_IDEA_1964_34.pdf

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4
well-defned character and the stock figure is the ability of the reader to discover more about
5
the character than, for example, his name.
4
Stock figures are vaguely drawn personalities whose characteristics are a collection of hazy generalities. This
occurs to a great degree when characterization is being made to contribute more to the development of the other
facets of the writing; plot, atmosphere or theme.
5
Supra note 3.

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TYPES OF CHARACTERS
1. Graphically represented characters:
Everyone is familiar with the graphic images of the Seven Dwarfs, Bugs Bunny, SpongeBob
Squarepants and Mickey Mouse. These characters have become a definitive part of our
culture, and are easily recognizable on the television screen or in picture books.
A graphic character is the drawing of a fictional entity that does not resemble an actual
person, place or thing. Graphic characters are offered legal protection that differs from most
other types of mediums. Typically, graphic characters are created for commercial purposes,
such as to advertise a product or service, or to appear in a book, movie or on television. As
such, they provide nearly infinitesimal benefits to the creator, and can be protected under a
wide variety of settings and characterizations from the original creation. For example, we
know who Mickey Mouse is, but we've seen him do a great many things. In one picture, he
might be wearing trousers and a flannel shirt, while in other pictures he might be represented
with only the black pants as in his original creation. The graphic character of Mickey Mouse
is protected regardless of where he is shown or what he is wearing. Mickey Mouse, as well as
other graphic characters used for commercial purposes, are protected as "intellectual
property". That means that their creator conceived and created the image of that character,
and therefore owns it.
There are two different ways to protect a graphic character: copyright registration and
trademark registration. Both have advantages and disadvantages, but the scope of protection
is decidedly different. Obtaining copyright protection of a graphic character is effective but
short-lived. Not only does copyright protection consider the physical aspects of the graphic
character in question, but also poses, attitudes, characterizations and settings. For example, I
could take Daffy Duck from Disney Productions and convert him into a comic book of my

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own creation, eliminating his lisp and his mannerisms. In this case, is copyright protection
effective enough to protect Daffy Duck from my use?
In the past, courts have ruled mostly in favor of the creators of the characters rather than
those who infringe upon copyright and trademark laws. The rulings depend upon the extent
of the use of the graphic character, the profits generated by that use, and the settings and
characteristics also lifted.
2. Literary characters:
Non-visual, literary fictional characters are generally termed as ‘literary characters’. These
are derived purely from verbal depictions. They are to be discovered principally in novels,
plays and short stories. Copyright of an author is violated if there appears to be a textual
6
‘lifting’ of the character by another. The issue of protection is baffling at a glance. What is
sought to be protected is the literary character against copying - but copying of what
precisely?
A literary character is a composite of one or more of the following: name, physical

appearance, dress, attributes, mannerisms, speech, habits, setting and locale. Whitford stated
that ‘there would be very real difficulty in defining exactly what a “character” is, i.e. in
deciding what are the essential features that make the character distinctive and which are
7
therefore worthy of protection’.
Moreover, there are his relationships with other characters and his general relationship to the
plot or story line to be considered. What there is to be discovered about the character may be
6
Tony R. Martino, "Popeye the sailor": Man of Letters - The Copyright Protection of Literary Characters, EIPR
1988, pg. 76.
7
Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs, HMSO
(Cmnd 6732) 1977, paragraph 909.

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8
matter-of-factly, clearly delineated . Alternatively, the reader may be left to reach his own
conclusions from a narrative of his exploits.
It is suggested that the creator of a literary character who invokes the aid of copyright law
may easily fall at two principal hurdles: first, the ‘ideas versus expression’ dichotomy;
secondly, insubstantial borrowing.
The majority of indicia of personality will fall within the realm of ideas. It is trite law to state
that there is generally no copyright in ideas alone. Laddie, Prescott and Vitoria in The
9
Modern Law of Copyright have highlighted the fallacy of this supposed doctrine. It is
suggested that they are correct and that ideas may be protected by copyright. But this is of no
comfort to authors.
8
Infra n ote 41.
9
1980, at page 31 et seq.

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PROTECTION OF CHARACTERS UNDER COPYRIGHT LAWS

While the legal protection of graphic characters is currently more defined than that for
fictional characters, courts are still inconsistent with regard to the specific body of
intellectual property or unfair competition law that provides such protection. Therefore, the
primary objective for the creator and/or owner of a particular character should be that of
providing the type of legal protection that cloaks the character in a protective environment
that combines the benefits of copyright, trademark and unfair competition law. The
overlapping protection provided by these different bodies of law has led one commentator to
reach the conclusion that the situation existing in many courts has resulted in the
convergence of distinct bodies of law, such as copyright, trademark and unfair competition,
10
into a new body of law formulated solely to protect characters.
The interplay of many factors has resulted in this convergence of the law. These factors
include:
(1) the profits that can be made from the commercialization of characters who are able to
take on a life of their own because they are capable of being transformed into new works that
employ new postures, settings and characterizations that differ from those in which the
character was originally depicted,
(2) the ability of characters as entertainment products to function as marks that are
recognized under federal, state and common law trademark law because they "suggest, if not
clearly indicate, origin" of the products or services on which the character is used, and
10
Michael Todd Helfand, When Mickey Mouse Is as Strong as Superman: The Convergence of Intellectual Property
Laws to Protect Fictional Literary and Pictorial Characters, 44 Stanford L. Rev. 623 (1992).

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(3) the quality that a character develops through extended use, both in time and from the
increased number of products and services on which the character is depicted, that leads the
11
public to frequently relate to the character as being human.
➢ Protection of Graphic Characters
Suppose a writer and an artist; are developing a comic book project. The main character
is based on an idea that the creators believe has enormous commercial potential; not just
as a character in a comic book, but hopefully in other media formats and merchandising
activities. As the creators develop their character it takes on the essential characteristics
that provide a character's uniqueness; a name, physical appearance, and attitude or
character traits. Will the law protect the character in the comic book? If the character is
used outside of the comic book, will it still be protected? After all, in this age of hype and
commercialization, it is very rare to see a popular cartoon character in only one medium.
It is not unusual today to find a character that makes its first appearance in a comic book
or in a film to be immediately, if not concurrently, licensed for toys, other products and
services, and being exploited in other media formats.
Therefore, what should the creators do to protect their character? Today, since the best
way to protect the character is to use as broad-based a protection policy as possible, the
creators should practice "overkill". This means the character should be protected by a
combination of copyright, trademark and unfair competition laws.
The Copyright laws provide creators and/or owners of graphic characters copyright
protection that is strong, but of limited duration. It is important to remember that the
copyrightable expression of a character is much more than just the character's physical
appearance, and that it includes the specific name, physical appearance, and character
traits of that character.
11
Ibid at p.628.

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Long lines of cases have found graphic characters to be protected by copyright law.
However, the early cases failed to determine whether the unauthorized use of a graphic
character would result in copyright infringement liability if the new work contained only
the graphic character, and not the plot elements of the first work. There also existed a
degree of uncertainty regarding copyright infringement liability if only a similarity in the
depiction of the character existed without there also being a similarity in the personality
12
of the character. In Warner Bros., Inc. v. American Broadcasting Cos. 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 characters' attributes and traits."
A similar result was previously evidenced in Detective Comics, Inc. v. Bruns Publications
13
where the court found that the character Superman was infringed in a competing comic
book publication featuring the character Wonderman. The court found that the infringing
work "appropriated the pictorial and literary details embodied in" the copyrights
protecting Superman.
The more recent cartoon cases have been somewhat clearer in finding that the similarity
in the graphic depiction of a character alone, without the plot elements, may be sufficient
for a finding of copyright infringement; however, there still remains some uncertainty
with respect to such a finding.
14
In the case of Walt Disney Productions. v. Air Pirates the infringers admitted copying
the names and appearances, but placing them in very different situations than those used
by Disney, of more than seventeen Disney cartoon characters for use in their adult,
counter culture comic books. The court rejected the defendant's fair use defense, but
noted that most of the previous cartoon character infringement cases "have considered the
12
Warner Bros., Inc. v. American Broadcasting Cos. 7 20 F.2d 231, 241 (2d Cir. 1983).
13
Detective Comics, Inc. v. BrunsPublications 1 11 F.2d. 432 (2d Cir. 1940).
14
Walt Disney Productions. v. Air Pirates 581 F.2d 751 (9th Cir. 1978)

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character's personality and other traits in addition to its image". This dictum once again
raised the issue of whether similarity of appearance by itself is sufficient for a finding of
copyright infringement liability. However, in a number of cases where cartoon characters
were reproduced as three-dimensional dolls or figures, copyright infringement was found
15
without any regard to the issue of copying the plot or personality of the character. In
those instances where copyright infringement was based solely on the appearance of the
character, the similarity was "virtually exact".
One of the more difficult problems of applying copyright law analysis and protection to
graphic characters is ascertaining how such protection will be extended to protect a
particular character once that character has taken on a life of its own and the character is
no longer existing in the original context in which it first appeared. Copyright law will
find that copyright infringement has occurred when someone other than the rightful
16
copyright owner of the character uses that character without permission, especially if
such use copies the appearance and unique character traits that distinguishes the
particular character.
However, in contrast to literary characters, graphically depicted characters do not suffer

from the same elusiveness as non-graphically depicted literary characters and have
therefore received different treatment. In a long line of cases, courts found that cartoon
17
characters are protected by copyright even when elements of plot are not copied.
Graphic characters are not treated differently because they are more deserving of
15
King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir. 1924) - Sparky; Fleischer Studios v. Ralph A
Freundlich, Inc., 73 F.2d 276 (2d Cir.), cert. denied, 294 U.S. 717 (1934) - Betty Boop; and United Features
Syndicate v. Sunrise Mold. Co., 569 F.Supp 1475 (S.D. Fla. 1983 - Peanuts characters.
16
Section 2(d), Indian Copyright Act, 1957: Author means- (iii) in relation to an artistic work other than a
photograph, the artist; author is the first owner of copyright subject to proviso to Section 17.
17
See Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983); Atari, Inc. v. N. Am. Philips
Consumer Elecs. Corp., 672 F.2d 607, 619 (7th Cir.1982); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 754 (9th
Cir. 1978).

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protection, but rather because “it is far simpler to make visual comparisons than to
18
compare abstractions.”
➢ Protection of literary characters
As indicated while describing a fictional character, a character can exist merely by its
textual description of that character. Who he or she is, what he or she looks like, the
manner of behavior and other such characteristics can all be described, in writing, by the
author. As such, the character may be protected under copyright law as part of the text of
that work. Since one of the rights of copyright is the right to make derivative works
19
based on the work , if there is such protection, the author (or whoever is the proprietor of
the rights in and to the text including the character) retains the right to make further use
20
of that character in such derivative works.
However, the character as described textually has to be protectable by copyright, meaning

that it must have sufficient originality to satisfy the requirements of the statute. If the
21
character as described is merely a “stock” character, there may not be sufficient
22
originality to make the character protectable.
Copyright law will only protect the characterization of a fictional character if the
character is portrayed in a copyrighted work. One difficulty in protecting a fictional
character under copyright law is that frequently a fictional character takes on a "life of its
own" that is independent of the story in which it first appeared. The problem is how to
protect the fictional character that takes this independent life. Another difficulty is that
sometimes a fictional character, even when it is incorporated in a copyrighted work, is
deemed by the court to not be entitled to copyright protection. Furthermore, even when
18
Kurtz, supra note 14, at 451.
19
Section 14, Indian Copyright Act, 1957.
20
Ivan Hoffman, The Protection of Fictional Characters as available at www.ivanhoffman.com/characters.html
21
Supra note 4.
22
Supra note 18.

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the fictional character is protected it frequently receives less protection than that accorded
23
to graphic characters.
The underlying reason for this varying degree of protection stems from the fact that
similarities between fictional characters are frequently less concrete than those for graphic
characters. Usually fictional characters are not represented by a singular physical image but
instead are merely representations that appear in the reader's imagination and therefore
24
different fictional characters are only abstractions that cannot easily be compared.
Although it is rather evident that copying of a particular fictional character has occurred if
one uses identical or substantially similar language to describe their fictional character, but
what more frequently occurs is a taking of the more abstract character traits and elements that
only conjure up a mental image of that character for the reader. In reality, none of the
verbally described characteristics of the fictional character are as dominant as the visually
depicted characteristics of a graphic character and therefore the copyright law distinction
between an unprotectable idea and protectable creative expression may prevent copyright law
25
from protecting the fictional character.
Copyright protection for fictional characters appears to have had as its genesis, a
subsequently much quoted statement by Judge Learned Hand. He suggested that characters
might be protected independent from the plot of a story. "It follows that the less developed
the characters, the less they can be copyrighted; that is the penalty an author must bear for
26
making them too indistinct."
Although the decisions in cases involving the protection of fictional characters have not been
consistent, the prevailing view has been that fictional characters are copyright protected.
23
http://www.legalhelpindia.com/articles/protection-of-fictional-characters.html#1
24
Ibid
25
Supra note 21 at para. 4.
26
Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931)

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However, the general trend with respect to copyright protection must be categorized as one
of restrictive protection rather than an all-encompassing scope of protection. Generally in
those cases where the fictional character was found to be protected, the character that was
copied was "distinctively delineated" (or fully developed) in the original work and that the
character's delineation was misappropriated in the copier's work. But even in those cases
where the fictional character was protected the courts have had difficulty in explaining why
the fictional character was distinctively developed. On the other hand, in those cases where
the fictional character was found not to be protected, the character was not distinctively
delineated in the original work and therefore that fictional character was only a particular
"character type" and was not entitled to copyright protection. Thus any inquiry concerning
the protection of fictional characters involves two questions. "First, was the character as
originally conceived and presented sufficiently developed to command copyright protection,
and if so, secondly, did the alleged infringer copy such development and not merely a
27
broader and more abstract outline."
Literary characters are especially hard to protect because they have a “tangible existence only
28
in the specific words, pictures, and sounds created by [their] author.” Each reader uses these
29
descriptions to come up with their own mental image of the character. Different readers
interpret the author’s description of a character in unique ways; they fill in the gaps left by
the author and make judgments and presumptions about the character using their own
individual sets of values. “An independent character, therefore, is difficult to define or grasp
30
clearly, since no two minds will conceive of it in precisely the same way.” Defining a
particular character is also difficult because authors – or good authors, at least – do not
simply list all of the characteristics of their fictional characters at the beginning of a work. A
27
Leslie A. Kurtz, Independent Lives of Fictional Characters, 1986 Wis. Law Rev 429, 453 citing M. Nimmer,
Nimmer on Copyright § 2.12.
28
Leslie A. Kurtz, The Independent Legal Lives of Fictional Characters, 1986 WIS. L. REV. 429, 430 (1986).
29
Id. at 430-31.
30
Id. at 431.

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character develops throughout the book, through its interactions with others, as well as
through its accomplishments, failures and reactions to difficult situations. Because
descriptions of characters are often scattered throughout a work and continuously change and
build, a character’s complete identity can be very difficult to grasp and clearly define.
TESTS EVOLVED BY COURTS

Since copyright law does not protect ideas from infringement, but instead only protects the
expression of those ideas, courts will not protect character types. Therefore, while a court
would probably not extend copyright protection to any man with super powers, the courts
have extended copyright protection to Superman without bestowing a monopoly on the mere
character of a "super man". Therefore, the best way to protect a graphic character under
copyright law is to ensure that the character's appearance and personality are specific and
31
unique.
Extrinsic & Intrinsic Test
One limiting principle is that copyright protection extends only to the expression of an idea
32
and not to the idea itself. In determining whether there is substantial similarity between the
expression of ideas in two different works, courts have sometimes used the “extrinsic” test,
31
Refer Protection of graphical characters as available at
http://www.legalhelpindia.com/articles/protection-of-graphic-characters.html
32
Mazer v. Stein, 347 U.S. 201, 217-18 (1954); Baker v. Selden, 101 U.S. 99, 102-03 (1879).

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where the plot, characters, setting, dialogue and other details of the two works are compared.
33
Other courts have turned to a more “intrinsic” test, where “[t]he two works involved . . .
[are] considered and tested, not hypercritically or with meticulous scrutiny, but by the
observations and impressions of the average reasonable reader and spectator.”
Abstraction Test
Another test, articulated by Judge Hand, is the “abstraction test,” where details of a work are
34
gradually left out so that the work becomes more and more general. At some point the work
is so general that to protect it would translate into protecting the copyright owner’s ideas
35
rather than his expression.
As is evident by the number of different tests used, it is oftendifficult to determine if an

allegedly infringing work has taken enough of the expression of the original to satisfy the
“substantially similar” standard of copyright infringement. The problem is further
complicated when we consider whether literary characters deserve separate and independent
protection.
The issue of separate protection for literary characters arises when the character is removed
from the original work, so that the character leads a new and independent life in a separately
written piece. Characters that are capable of leading independent lives are those who are
especially memorable, such that they stay in a reader’simagination long after the original
storyline is forgotten. An author seeking to write a new adventure for Superman, Tarzan, or
Sherlock Holmes, must be aware of the legal considerations involved. When the character is
separated from his original copyrighted work, the determination of the legal protection to
which the character itself is entitled is difficult to determine.
33
Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579, 582 (9th Cir. 1944).
34
Ibid.
35
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

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‘Distinctive delineation’ Test and ‘the Story being told’ test
Despite the difficulty inherent in establishing independent legal protection for literary
characters, courts have articulated two main tests for determining when a character deserves
independent copyright protection. The first test was termed the “distinctly delineated” test
36
and the second test has been referred to as the “story being told” test.
The possibility of protecting literary characters seemingly originated in Nichols v. Universal

37
Pictures Corp . The plaintiff in that case was the author of the play Abie’s Irish Rose, which
38
is about a Jewish boy marrying an Irish-Catholic girl. The play follows the conflict which
the couples’ union causes within their religious families, but ultimately has a happy ending.
The plaintiff alleged that the defendant’s motion picture The Cohens and the Kelleys
infringed upon her play. The defendant’s movie is about a Jewish girl and an Irish- Catholic
man who marry and the trouble that their marriage causes within their families. The movie
also ends happily with the families reconciling.In the course of his decision, Judge Hand
mentioned the possibility that characters could be protected “independently of the ‘plot’”
39
even though such a case had not previously arisen. He explained that:
If Twelfth Night were copyrighted, it is quite possible that a second comer might so
closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough
that for one of his characters he cast a riotous knight who kept wassail to the
discomfort of the household, or a vain and foppish steward who became amorous of
his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little
capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the
Origin of Species. It follows that the less developed the characters, the less they can
36
Warner Bros. Pictures Inc. v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954) (discussing analysis in
Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)).
37
Nichols v. Universal Pictures Corp F.2d 119.
38
Ibid at 120.
39
Id. At 121.

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be copyrighted; that is the penalty an author must bear for marking them too
40
indistinctly.
This analysis by Judge Hand gave rise to the “distinctly delineated” test. The “distinctly
delineated” test rests on the principle that the more developed a character is, the more it
41
embodies protectable expression and less a general idea. Courts since Nichols have
developed a two-part test from Judge Hand’s discussion, which has become the standard
42
employed in character infringement cases. The first question under the test is “whether the
43
character was created with enough delineation to afford copyright protection.” Only if
thecharacter is sufficiently developed so that it constitutes more than just an idea, and
therefore is worthy of copyright protection, should one move on to the next step. The second
question is whether “the alleged infringer copied such development and not merely a broader
44
andmore abstract outline.” To establish an infringement there must be actual copying of
45
expression rather than copying of ideas or using a general type of character.
The Ninth Circuit formulated the second major standard for determining whether characters
deserve independent copyright protection in Warner Bros. Pictures, Inc. v. Columbia
46
BroadcastingSystem. In that case an author, Hammett, composed a mystery detective story
47
called The Maltese Falcon, whose main character was a detective named Sam Spade.
Hammett then granted Warner Brothers exclusive rights to use The Maltese Falcon story in
40
Supra note 47.
41
See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.12 (Matthew Bender &
Co. ed. 2004) [hereinafter NIMMER].
42
See id.; Gregory S. Schienke, The Spawn of Learned Hand – A Reexamination of Copyright Protection and
Fictional Characters: How Distinctly Delineated Must the Story Be Told?, 9 MARQ. INTELL. PROP. L. REV. 63,
68-69 (2005).
43
Mathew A. Kaplan, Note, Rosencrantz and Guildenstern Are Dead, But Are They Copyrightable?: Protection of
Literary Characters With Respect To Secondary Works, 30 RUTGERS L.J. 817, 823 (1999); see also NIMMER,
supra note 27, §2.12.
44
NIMMER, supra note 27, §2.12.
45
Mazer v. Stein, 347 U.S. 201, 217-18 (1954) (“protection is given only to the expression of the idea – not the idea
itself”).
46
216 F.2d 945 (1954).
47
Id. At 948.

23 | Page
48
movies, radio and television. Hammett later used Sam Spade as the main character in new
stories, and Warner Brothers complained that it had acquired the exclusive right to use the
49
writing, The Maltese Falcon. Warner Brothers argued that the license included the
individual characters, their names and the title. Hammett argued that the exclusive use of the
characters and their names was not granted in the license, and that he could therefore use
them in subsequent stories. The Court held that Hammett did not grant the rights to
thecharacters in the license to Warner Brothers and that Hammett could use the Sam Spade
50
character in subsequent stories. The Court explained that the argument set forth by Warner
Brothers was “unreasonable, and would effect the very opposite of the statute’s purpose
51
which is to encourage the production of the arts.”
The Court went on to reason, however, that “[i]t is conceivable that the character really
constitutes the story being told, but if the character is only the chessman in the game of
he
telling the story he is not within the area ofthe protection afforded by the copyright.”T
Court concluded that even if Hammett had assigned the complete rights to Warner Brothers
he could still use his characters in subsequent stories because “[t]he characters were vehicles
for the story told, and the vehicles did not go with the sale of the story.”
This test, which became known as the “story being told” test, greatly narrowed the
52
protection available for literary characters. In fact, the standard excluded “virtually any
character from copyright protection, because it ‘seems to envisage a story devoid of plot
53
wherein character study constitutes all, or substantially all, of the work.” The standard has
been criticized and many courts have declined to use it, distorted its meaning to avoid its
54
consequences, or ignored it and applied the Nichols test instead. Despite this stringent
48
Id.
49
Id at 948.
50
Id. At 949.
51
Id. At 950.
52
NIMMER, supra note 27, §2.12.
53
Kurtz, supra note 14, at 455 (quoting NIMMER, supra note 27, §2.12).
54
Id.

24 | Page
standard, courts have found certain characters, such as Rocky and James Bond, to constitute
55
the “story being told.” In both these cases, however, the court also included an analysis
56
under the “distinctly delineated” test. If the two main standards used to determine when
literary characters are entitled to copyright protection seem vague and confusing, that is
because they are.
COPYRIGHT ACT, 1957 AND PROTECTION OF

CHARACTERS: HOW EXTENSIVE IS THE
INDIAN LAW?
The Indian Copyright Act, 1957 provides a fair degree of protection in respect of sketches,
drawings, and so on, falling into the category of artistic work although it is very limited.
57
Section 14 of the Act provides the exclusive right to authorize others to reproduce the work
55
See Anderson v. Stallone, No. 87-0592 WDK, 1989 U.S. Dist. LEXIS 11109, at *20-23 (C.D. Cal. Apr. 25, 1989);
see also Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995).
56
See MGM, 900 F. Supp. at 1296; Anderson, No. 87-0592 WDK, 1989 U.S. Dist. LEXIS 11109, at *20-23 .
57
14. Meaning of copyright-For the purposes of this Act, "copyright" means the exclusive right subject to the
provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any
substantial part thereof, namely:-
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work
or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;

25 | Page
in any form, including conversion of a two-dimensional work to three-dimensional work and

vice versa. This may be possible in cases where merchandise like toys and T-shirts are made
58
based on artistic works.
The courts in India have accorded protection to characters which fall under the category of
59
artistic work. In an interesting case of Raja Pocket Books vs. Radha Pocket Books , a
popular character of children's comic book Nagraj - the Snake King was protected under
copyright law. In this case, defendants sought to release a comic book with a character called
Nagesh that wore a similar outfit and had similar powers to the character Nagraj.
Determining ownership over the character
It is the settled law in every jurisdiction that the creator of the work is the person with whom
the copyright over the work vests. Applying this rule, the one who creates the character is
always considered to be its owner. But in circumstances where a person creates a character in
the course of employment, the employer becomes the owner of such work although the
author is someone else.
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to
(iv);
58
Sec. 2(c) : Artistic work means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph,
whether or not any such work possesses artistic quality;
59
Raja Pocket Books vs. Radha Pocket Books, 1997 (40) DRJ 791

26 | Page
60
Section 17 of the Copyright Act, 1957 vests this right in the employer when the character
has been created in the course of employment or under a contract of service. This dispute had
61
arisen in the case of MalayalaManorama v. V.T. Thomas . It is importantto note here that
though the Court did not address the issue of ‘copyrighability’ of characters but limited its
judgment to the ownership of copyright only, it can be inferred that the Court did recognize
62
the fact that a character could be given protection under copyright regime. This case was
concerned with the rights of the cartoonist Toms, employed by the MalayalaManorama for
drawing cartoon strips for their magazine Manorama. The cartoon characters were conceived
by Toms even before he took up employment with Manorama in 1961. The artist was given
ownership over the characters independently and the episodes featuring during the course of
employment were held to be owned by Manorama.
Adaptation of characters
63
One of the meanings of adaptation in Section 2(a) (v) is as follows:
“in relation to any work, any use of such work involving its rearrangement or
alteration.”
60
Section 17. First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first
owner of the copyright therein.
Provided that-
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the
proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the
purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of
any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the
publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the
purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the
work;
(c) in the case of a work made in the course of the author s employment under a contract of service or
apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement
to the contrary, be the first owner of the copyright therein;
61
AIR 1989 Ker 49
62
SouravKanti De Biswas, Copyrightability of Characters, JIPR, vol 9, March 2004, pp. 148-156 as available at
http://nopr.niscair.res.in/bitstream/123456789/4732/1/JIPR%209(2)%20148-156.pdf
63
Indian Copyright Act, 1957

27 | Page
Copyright in the adaptation of a work vests in the owner of a literary, dramatic or musical
64
work and in an artistic work by virtue of Section 14. Further, the exclusive acts conferred
upon the copyright owner under Section 14 in respect of such works include the right to
reproduce the same in any material form and the same meaning of reproduction is applicable
65
to adaptations.
The authors of copyright in artistic works enjoy economic rights u/s 14 of the Act. The rights
available to an author include the right to reproduce the work in any material form, including
66
depiction in three dimensions of a two dimensional work or in two dimensions of a three
67
dimensional work, to communicate or issues copies of the work to the public , to include the
68 69
work in any cinematograph work , and to make any adaptation of the work .
Examining the definition of ‘artistic work’ in India, we find that a painting, sculpture,
drawing…has been described to be an artistic work. Nowhere has character been included in
the definition. What can be protected under artistic work is the specific drawing of the
cartoon and episodes based on it. The characteristics of the character remain out of purview.
70
Similarly, ‘literary work’ has been given an inclusive meaning under the Act thereby
leaving wide open the ambit of its meaning which is to be determined by the Courts. The
71
work has to be written down and that particular work in that particular form is protected.
CASE LAWS AND JUDICIAL

PRONOUNCEMENTS
64
Supra note.
65
See Latha R. Nair, An Indian Perspective of Tasini and Greenberg, MIP, June 2002, Issue 120 as available at
http://www.knspartners.com/files/An%20Indian%20Perspective%20of%20Tasini%20and%20Greenberg.pdf
66
Section 14 (c) (i) of the Indian Copyright Act, 1957.
67
Section 14 (c) (ii) of the Indian Copyright Act, 1957.
68
Section 14 (c) (iv) of the Indian Copyright Act, 1957.
69
Section 14 (c) (v) of the Indian Copyright Act, 1957.
70
Section 2(n)
71
Refer Supra note 75.

28 | Page
The US courts, like their UK counterparts, have tended to approach the question of character
72
rights ‘in terms of copyrightability per se’. They have also more readily accorded protection
73
to visual characters.
74
In Walt Disney, the Court expressed the opinion that literary characters were not ordinarily
75
susceptible to copyright protection. This was based on the Sam Spade case which concerned
the author Dashiell Hammett and his novel The Maltese Falcon, introducing the detective
Sam Spade.
The Court was able in that case to avoid a ruling on the difficult question of character rights.
The claims arising from the action were Walt Disney Productions Inc. v Air Piratesdisposed
of by other means. But it did go on to state, obiter dicta, that while the character in question
could not be protected by copyright, some characters could.
What then are the criteria for copyright protection? The Court of Appeals for the Ninth
Circuit in the Sam Spade case adopted the test enunciated in Nichols v Universal Pictures
76
Corp. The Court stated that the majority of literary characters would fall at the ‘ideas
hurdle’.
In order to qualify for copyright protection the character must be distinctively developed. A
general type or common character will not be afforded copyright protection. If the character
is distinctive, the test of infringement is a simple one - has the character been too closely
imitated? This is necessarily a somewhat vague test. The precise difficulty lies in setting the
appropriate boundary line. But this is not the function of superior courts. Theirs is to
72
M.B. Nimmer, Nimmer on Copyright, 1983.
73
Detective Comics, Inc. v Bruns Publications, Inc. 111 F. 2d 432 (2d Cir. 1940).
74
581 F. 2d 751 (9th Cir. 1978); cert. denied, 439 US 1132 (1979).
75
Warner Bros. Pictures, Inc. v Columbia Broadcasting System, Inc. 216 F. 2d 945 (9th Cir. 1954); cert. denied, 348
US 971 (1955).
76
Nichols v Universal Pictures Corp. 45 F. 2d 119, 121 (2d Cir. 1930); cert. denied, 282 US 902 (1931).

29 | Page
establish the correct doctrinaire approach. The rest is a matter of fact and degree which,
however poorly equipped the judges are to make such balancing acts, make them they must.
However, the Sam Spade Court was not content to leave the matter at that. It added a fresh
ingredient - the character had ‘really [to] constitute the story being told’.
77
In Goodis v United Artists Television the Court said that this ‘would effectively permit the
unrestrained pilfering of characters’.The Sam Spade case initiated not only a long and
controversial debate, but has probably achieved greater distinction in not being followed.
78
InColumbia Broadcasting System, Inc. v De Costa the Sam Spade case was described as
having limited holdings which did not imply that ‘characters are inherently uncopyrightable’.
Perhaps most interestingly from a conceptual lawyer's point of view is the fact that the US
courts have not sought to erect a distinction between literary and visual characters. The
crucial issue is ‘delineation’ and this is a question of fact and degree. The UK courts have
much to learn from putting the law on this simple and rational footing.
79
In the matter of King Features Syndicate Inc. and Others v Sunil Agnihotri and Others asuit
forinfringement of copyright was brought by the plaintiff. The dispute revolved around
characters ‘Phantom’ and ‘Betaal’. Plaintiffs filed an application for interim injunction
restraining Defendants from releasing television serial cinematograph film entitled 'Phantom'
and/or 'Betaal'. Plaintiff is owner of copyright in well-known comic character Phantom. It
was held that the defendant was not guilty of infringing copyright of literary and artistic work
of Plaintiffs. It was not case of Defendants publishing comics using name and materials and
77
425 F.2d 397 (2d Cir. 1970).
78
377 F.2d 315 (1st Cir. 1967); cert. denied, 389 US1007 (1968).
79

30 | Page
character used by Plaintiffs. If a person uses materials from what may be third party sources
and uses them for a different purpose though idea may be same as pointed out by Supreme
80
Court in R. G. Anand v. Delux Films there is no infringement.
Salinger v.Colting
J. D. Salinger, author of the well-known novel The Catcher in the Rye, issued
acopyright infringement lawsuit against Swedish author, Fredrik Colting, who wrote 60
Years Later: Coming Through the Rye, under the pseudonym John David (J.D.) California,
featuring a 76-year-old Holden Caulfield. Colting's novel has been published in Sweden by
his company Nicotext, published in the UK by Windupbird Publishing and was due to be
distributed in the US by SCB Distributors, all of which are named defendants in the trial.
Salinger claimed that the “sequel” was “a rip-off, pure and simple” and that as the author, he
“holds the exclusive right to create, or authorise others to create, derivative works based
upon Catcher” . Salinger claimed that Colting's use of Holden Caulfield in 60 Years
Later amounted to copyright infringement in his character. One of the main questions for the
court to decide was whether an author can claim ownership of a literary character and
prevent others from using the character in derivative works.
Protection of the Caulfield character expands copyright protection into the realm of “moral
rights”, which do not exist under US copyright law and are at odds with fair use. The danger
arises when moral rights are used to protect characters and other aspects of a copyright work
to trump the right to free speech and the creation of derivative works. An author cannot
prevent the publication of transformative works or critique, which stimulates the free flow of
ideas. The Library Amici share this concern and criticise Judge Batts for introducing a new
precedent for finding market harm: authors may create original works due to the right not to
80
[ 1978 Indlaw SC 294]

31 | Page
81
license derivative works. The District Court's decision to protect a purely literary character
may be viewed by some as having brought copyright protection perilously close to the
protection of ideas and grates against previous US case law.
82
In fact, Suntrust v Houghton Mifflin states the opposite: a refusal to license is a factor
favouring fair use. The Eleventh Circuit vacated an injunction against the publication of The
Wind Done Gone, which used scenes andcharacters from the novel Gone With The Wind, on
the basis that The Wind Done Gone parodied the original work by commenting on or
criticising Gone With The Wind “by appropriating elements of the original in creating a
new artistic, as opposed to scholarly or journalistic, work”.
83
In McCulloch v May the plaintiff children's radio presenter was unable to prevent the
defendants from using his radio name (‘Uncle Mac’) as the name for a breakfast cereal, on
the basis that there was no conceivable connection between a children's radio presenter and a
company making cereal. The plaintiff was not engaged in producing or marketing cereals,
and in the absence of such a ‘common field of activity’, there could be no passing off.
The ‘common field of activity’ test has continued to bedevil plaintiffs in English cases since
84
then. This is illustrated in the case of fictionalcharacters by Wombles v Wombles (Skips) Ltd
where there was no common field of activity between the plaintiffs (the owners of rights in
81
Rohan Massey, Natasha Tian; Caught coming through the rye - a purely literary character protected by US
copyright? Entertainment Law Review 2010 as available at
http://login.westlawindia.com/maf/wlin/app/document?&src=rl&srguid=ia744d05e0000013345bbd86d7b027cfd&d
ocguid=IE1BA861046A511DF8B88FA13AEE581B7&hitguid=IE1BA861046A511DF8B88FA13AEE581B7&spos
=8&epos=8&td=220&crumb-action=append&context=25&resolvein=true
82
83
[1948] 65 RPC 58. See: J. Phillips and A. Coleman, ‘Passing Off and the “Common Field of Activity” ’ [1985]
101 LQR 242.
84
[1977] RPC 99.

32 | Page
children's TV characters) and the defendants (rubbish removers), so that no confusion could
arise from the use by the latter of the former's name.
The same attitude was prevalent in a case involving real persons: Lyngstad v Anabas
85
Products Ltd where the pop group Abba failed to stop the defendants from selling goods
(T-shirts) using their names and images. In that case Oliver J said:
The expression ‘common field of activity’ is not, I think, a term of art, but merely a
convenient shorthand term for indicating the need for a real possibility of confusion,
which is the basis of the action. This necessity, the need to show that reasonable
people might think that the Plaintiffs' activities were associated with the Defendants'
goods or business, at least to the extent of implying some sort of approval on the part
of the Plaintiffs, is something which might, I suppose, be said to cause damage to the
86
Plaintiffs', for instance, if the goods were defective in quality.
87
The decision of the court in the case of Anderson v. Stallone reveals how the courts have
used the ‘character deineation’ test to protect fictional characters. The appellant had written a
story based on the ‘character’ of ‘Rocky’ which appeared in the movie series by the same
name. The court ruled in the favour of the Defendant saying that the physical and emotional
character of ‘Rocky’ was set forth in tremendous detail and hence the character was highly
delineated. The Court went on to say:
“This court has no difficulty in ruling as a matter of law that the character of Rocky is so
well delineated that it is protected from bodily appropriation when transported into a sequel
by another author.”
85
[1977] FSR 62
86
Id. At 67.
87
11 USP Q 2d 1161 (C.D. Calif. 9189)

33 | Page
88
In Warner Bros., Inc. v. American Broadcasting Cos , the US 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 characters’
attributes and traits.”
89
In a similar but earlier case, Detective Comics, Inc. v. Bruns Publications , the US court
found that the character Superman was infringed in a competing comic book publication
featuring the character Wonderman. The court found that the infringing work “appropriated
the pictorial and literary details embodied in” the copyrights protecting Superman.
Later cases appear to suggest that the similarity in the graphic depiction of a character alone,
without the plot elements, may be sufficient for copyright infringement.
90
In Walt Disney Prods. v. Air Pirates , the infringers admitted copying the names and
appearances of the characters, but placing them in very different situations than those used by
Disney, ie in adult, counter culture comic books. The court rejected the infringers’ defence.
88
720 F.2d 231, 241 (2d Cir. 1983)
89
111 F.2d. 432 (2d Cir. 1940).
90
581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132 (1979).

34 | Page
CONCLUSION
Copyright laws may - albeit indirectly - protect the character after all, if he satisfies the
following requirements: first, he must be distinctive and clearly delineated and secondly, he
must be an ‘important’ part of the work. The test being qualitative rather than quantitative,
the lifted portion in which the characterisation appears may be comparatively small, yet
embody the essence of the work. If it does, it may be held ‘substantial’. The test is
cumulative. It is not the character itself which is protected, but the whole work of which he is
an important part.This is all unsatisfactory. The fact that (literary) characters must rely for
their protection on their broad setting proves that the creation of literary characters is not
taken seriously by the law-makers. Professor Nimmer has observed that the ‘increasing
prevalence of “sequels” in novels, motion pictures and television wherein characters from a
prior work are used in an otherwise completely new work renders it appropriate to consider
the copyrightability of a character apart from the original work in which the character
91
appeared’.
As far as graphical characters are concerned, in the past, courts have ruled mostly in favor of
the creators of the characters rather than those who infringe upon copyright and trademark
laws. The rulings depend upon the extent of the use of the graphic character, the profits
generated by that use, and the settings and characteristics also lifted.Copyright laws do not
protect an idea but protects the expression of that idea. The court will never protect the idea
of any man with super powers but will protect the character of Superman.Are we really to
believe that Anna Karenina and Madame Bovary are not worth the trouble?
91
M.B. Nimmer, Nimmer on Copyright, 1983.

35 | Page
BIBLIOGRAPHY
Articles:
● David B. Feldman, ‘Characters: A proposal for change in Copyright Protection’, 78

California Law Review 687 (May 1990).
● David B. Feldman, ‘Finding a home for fictional characters’
● James Robert Parish, ‘Statutory Copyright protection of Fictional Characters’
● Tony R. Martino, "Popeye the sailor": Man of Letters - The Copyright Protection of
Literary Characters, EIPR 1988
● Michael Todd Helfand, When Mickey Mouse Is as Strong as Superman: The
Convergence of Intellectual Property Laws to Protect Fictional Literary and Pictorial
Characters, 44 Stanford L. Rev. 623 (1992).
● Ivan Hoffman, The Protection of Fictional Characters
● Leslie A. Kurtz, The Independent Legal Lives of Fictional Characters, 1986 WIS. L.
REV. 429, 430 (1986)
● Llyod Rich; Protection of graphical characters.
● Gregory S. Schienke, The Spawn of Learned Hand – A Reexamination of Copyright
Protection and Fictional Characters: How Distinctly Delineated Must the Story Be
Told?, 9 MARQ. INTELL. PROP. L. REV. 63, 68-69 (2005).
● Mathew A. Kaplan, Note, Rosencrantz and Guildenstern Are Dead, But Are They
Copyrightable?: Protection of Literary Characters With Respect To Secondary Works,
30 RUTGERS L.J. 817, 823 (1999)
● SouravKanti De Biswas, Copyrightability of Characters, JIPR, vol 9, March 2004
● Massimo Pavolini, ‘Protection of fictional characters in the United States and in Italy’
or "SeiPersonaggi in cerca di Dirittod'Autore" Entertainment Law Review 1993.
● Rohan Massey, Natasha Tian; Caught coming through the rye - a purely literary
character protected by US copyright? Entertainment Law Review 2010.
● J. Phillips and A. Coleman, ‘Passing Off and the “Common Field of Activity” ’
[1985] 101 LQR 242.
Books:

36 | Page
● MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.12

(Matthew Bender & Co. ed. 2004)
● Dr. B.L. Wadhera, Law Relating to Intellectual Property, 4thedn, Universal Law
Publishing Co.,2007.
Reports:
● Copyright and Designs Law: Report of the Committee to Consider the Law on
Copyright and Designs, HMSO (Cmnd 6732) 1977.
● House Committee on the Judiciary, 89th Cong. 1st Sess., Supplementary Report of
the Register of Copyrights on the General Revision of the US Copyright Law: 1965
Revision Bill 6 (Comm. Print. 1965).
Websites:
● http://www.jstor.org/pss/3480842
● http://ipmall.org/hosted_resources/IDEA/pdf/8_IDEA_1964_34.pdf
● www.ivanhoffman.com/characters.html
● http://www.legalhelpindia.com/articles/protection-of-fictional-characters.html#1
● http://www.legalhelpindia.com/articles/protection-of-graphic-characters.html
● http://nopr.niscair.res.in/bitstream/123456789/4732/1/JIPR%209(2)%20148-156.pdf
● http://www.knspartners.com/files/An%20Indian%20Perspective%20of%20Tasini%20
and%20Greenberg.pdf
● http://login.westlawindia.com/maf/wlin/app/document?&src=rl&srguid=ia744d05e00
00013345a3df59ee67e178&docguid=IB11F3380E72111DA9D198AF4F85CA028&h
itguid=IB11F3380E72111DA9D198AF4F85CA028&spos=45&epos=45&td=52&cru
mb-action=append&context=9&resolvein=true

37 | Page

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PROJECT ON

PROTECTION OF CHARACTERS UNDER

MS. Aparajita Das

(FACULTY OF INTELLECTUAL PROPERTY RIGHTS)

ROLL NO. – 178

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Roll No.- 178

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

LIST OF ABBREVIATIONS & ACRONYMS 5

ESSENCE OF A FICTIONAL CHARACTER 7

P​ROTECTION OF A CHARACTER UNDER COPYRIGHT LAWS 12

TESTS EVOLVED BY COURTS 19

● E​XTRINSIC& INTRINSIC TEST

● DETERMINING OWNERSHIP OVER THE CHARACTER

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

CASE LAWS & JUDICIAL PRONOUNCEMENTS 27

LIST OF ABBREVIATIONS& ACRONYMS

A.C. …………………...……………………………Law Reports, Appeal Cases (Third Series)

AIR…………………………………………………………………………...All India Reporter

All. ER……………………………….…………………………………...All England Reporter

ALR……………………………………………………………………..American Law Review

App Div​……………………………………………………...………………​Appellate Division

C.L.R……………………………………………………………………Common Law Review

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

CLJ………………………………………………………………..……......Common Law Journal

E.C.R. ……………..………………………………………………........European Council Review

E.I.P.R………………………………………….………….European Intellectual Property Review

JIPR………………………………………………………..Journal of Intellectual Property Rights

L Ed……………………………………...United States Supreme Court Reports, Lawyers Edition

L.Q.R. ………………..……………………….………………………...London Quarterly Review

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

S Ct………………………………………………………Supreme Court Reporter(United States)

SCC……………………………………………………………..………….Supreme Court Cases

W.L.R……………………………………………………………….………..Wales Law Review

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

ESSENSE OF A FICTIONAL CHARACTER

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

A literary character is a composite of one or more of the following: name, physical

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

PROTECTION OF CHARACTERS UNDER COPYRIGHT LAWS

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

➢ Protection of Graphic Characters

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

However, in contrast to literary characters, graphically depicted characters do not suffer

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

➢ Protection of literary characters

However, the character as described textually has to be protectable by copyright, meaning

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

TESTS EVOLVED BY COURTS

Extrinsic & Intrinsic Test

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

As is evident by the number of different tests used, it is oftendifficult to determine if an

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

‘Distinctive delineation’ Test and ‘the Story being told’ test

The possibility of protecting literary characters seemingly originated in ​Nichols v. Universal

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

INTELLECTUAL PROPERTY RIGHTS (COPYRIGHT)

PROTECTION OF A CHARACTER UNDER COPYRIGHT LAWS 12

● EXTRINSIC& INTRINSIC TEST

App Div……………………………………………………...………………Appellate Division

The possibility of protecting literary characters seemingly originated in Nichols v. Universal