Protection of fictional characters

On a similar notion, German courts have repeatedly held that a famous character from actual or literary history cannot be registered for goods such as books or films that may directly deal with this classic character, but may very well be registered for other goods, such as soap see e.

Its basic premise is that if a character is not a prominent part of relaying the story, it is not copyrightable, and others may use the character without infringing on a copyright. Justice Stewart in Jacobellis v.

T the Extra Terrestrial revolved. However, the widespread and worldwide popularity of Pinocchio the cartoon embodiment by the Disney company would qualify as Protection of fictional characters a secondary meaning.

Copyright protection shall therefore be enjoyed by a character provided it is well delineated. Although this is a rather self-evident difference it is an extremely significant one when evaluating the scope of protection that is available for fictional characters as compared to the protection available for graphic characters.

In order to argue for misappropriation of fictional characters, the plaintiff must demonstrate that firstly, there has been an investment of substantial amount of time and effort by him, secondly, the defendant has appropriated the product of such investment, and thirdly, such appropriation has caused loss to the plaintiff.

However, as with trademark law, unless a fictional character is used wrongly in a commercial context, it is unlikely that unfair competition laws would provide protection for the fictional character. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim.

To justify the charge that a new character is not original but an infringement the incidents and situations through which that character expresses itself must also be taken into consideration. The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be.

The first instance where this issue was brought into light was in the case of Malayala Manorama v VT Thomas. Although every effort has been made to verify the accuracy of items carried in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.

These methods include the character delineation test, the story telling test, an extrinsic test that ascertains whether there is a substantial similarity in the theme, plot and sequence, settings, mood, dialogues, and characters and finally an intrinsic test that looks at the total concept and feel of a fictional character to determine if that character has been copied and whether there is a substantial similarity in copyrightable expression.

To the same extent would be Bugs Bunny, the source being Warner Bros. Copyright law of India Section 13 of the Indian Copyright Act, allows for copyright in original literary, artistic, musical and dramatic works, as well as in sound recordings and cinematography films.

The legality of a given work of fan fiction will depend principally on three legal doctrines: 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.

Some but certainly not all of the legal problems with the copyright protection of characters come when those characters are taken from one medium to another. The words which create the character also create an image in the mind of the reader, an image which may be more vivid than life.


The aim of copyright protection is to provide incentives to authors to create works of art they might not create if they feared misappropriation of those works for profits by others. Fictional characters are born of larger creations, whether they come from literary, artistic or cinematographic works.

Once a trademark is registered, the owner is faced with the second challenge: In the case of Universal City Studios v. In general, the earlier a trademark is applied for and the less popular the character is at the time the application is filed, the easier the trademark will be to obtain, because at that point the trademark will not be considered descriptive to the general public.

The portrayal of the Marx brothers as characters in a play was held to be an infringement of their right to publicity. On the other hand, a fictional character is a word portrait of which the physical appearance and characterization reside in the mind of the reader.

Thus, while it is possible that a third party may use a public domain version of a character, they may not be able to use the still-protected version. Still, it has to be borne in mind that in the protection of fictional characters, national copyright and unfair competition law will come into play, just as the right to publicity will be important in protecting celebrities.

Protection of Fictional Characters

This secondary meaning then allows the consumer to know that when he or she sees or relates to that character, that the particular source is behind it, either directly or through some quality-controlled licensing arrangement.

Similarly, the character of James Bond was awarded copyright protection on the grounds of being both sufficiently delineated as well as central to the story being told.Nov 08,  · Trademark Protection. Trademark law may protect the names, physical appearance, catchphrases, and certain other elements of fictional characters, provided that.

TRADEMARK PROTECTION. A fictional character, similar to a graphic character, cannot obtain trademark protection for its own protection, but may only be protected when the trademark indicates a particular source of goods and services.

However, unlike for graphic characters, courts have not fully embraced trademark protection for fictional characters. Although fictional characters have become an increasingly per- vasive part of American culture, they still do not enjoy well defined legal protection against infringement.

One of the most valuable assets in today’s entertainment industries is the established characters that audiences throughout the world have come to recognize.

In the context of IP protection, “real-life” celebrities and fictional characters from book or movie franchises have a lot in common. including fictional characters that are (1) original, and (2) fixed in a tangible medium.

4 Cases construing the meaning of “originality” generally have required it to mean “independent creation plus a. Thus, character protection under trademark law can exist concurrently with such protection under copyright law or can exist after the expiration of rights under that copyright law since trademark rights can go on virtually forever as long as the use qualifies, the mark is not “abandoned” or has not become “generic” and the appropriate filings are made.

Protection of fictional characters
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