Fictional characters are an outcome of creativity, however, neither copyright law nor trademark law grants protection to these fictional characters. Fictional characters, different from graphical characters, is a word portrait of which physical appearance and characterization reside in the minds of reader. Consequently, there is rampant exploitation of rights of owner by way of character merchandising in India. Character merchandising is basically commercial exploitation of fictional characters or personality by way of artistic works, associated goods and services. Chhota Bheem, Chacha Chaudhary, Shaktiman are some prominent examples of fictional characters which people of different age groups want to buy in the form of various products (bags, footwear, clothes, etc).
Copyright subsists in the form of original work of author where protection is only given to expression not to an idea. Generally, fictional characters are treated as mere ideas but in certain cases, such ideas are developed to such an extent that they form an independent expression of the idea. At this stage, characters can be legally protected under the copyright law. Since, fictional characters can be represented in various ways , not just a singular physical image that appears in the reader’s mind, therefore, it is not easy to compare and grant protection to such characters that are only abstractions.
However, the copyright protection of fictional character solely vests with the producer in case of cinematographic film such as television serial and film. Whereas, when a fictional character is developed as a literary work or artistic work outside the domain of cinematographic film, then the creator is said to have copyright protection. But the controversy arises when copyright protection is granted outside the cinematographic film.
The courts of United States have laid down two tests for determining the copyrightability of fictional characters. Character Delineation Test prescribes that the more developed a character, the more it embodies expression, the more it is likely to be copyrightable. The second one is the Story Being Told Test which says that if a character is a prominent part of relaying the story, then it is copyrightable.
In Star India Private Limited v. Leo Burnett (India) Private case, the Bombay High Court held that the character to be merchandised must have gained public recognition and independent life for itself, independent of its original product, milieu or area in which it appears.
Through copyright protection, the owner seeks not only the character’s copyright but also the goodwill that such character has built over the past years. But under copyright law, it is assumed that the value of copyright work decreases with time. This thing increases the chances of infringement by another.
Since the fictional character can be represented in a three-dimensional or pictorial form of goods and services, hence it can be protected under the trademark law in different classes. For a character to be protected under the trademark, such character must be associated with goods and services that use the character as a mark and must be distinguishable from the source of goods and services from those of others. One of the major limitations of this law is that it does not provide rights to the owner against fair use. At the same time, when trademark rights are granted to an owner on specific goods, it creates perpetual monopoly on the use of such character. Therefore, it is imperative to maintain balance by appropriate laws.
To sum up, it can be said that there still exists some degree of inconsistency and uncertainty regarding the legal protection of fictional characters in India. The courts of India do not have standard formula regarding how to compensate for damages since the courts are unable to see the differences between fictional characters and another. In the present era, India is an emerging market for merchandising of fictional characters either in the form of comics or television serials. In the past, the Indian courts had not adopted standard criteria for deciding the matter involving fictional characters. Therefore, it is imperative to amend the laws relating to protection of fictional characters by maintaining a balance between an incentive to creator of such characters and fair use by public. At the same time, the owner of such character should do all necessary things for the protection of his potentially valuable fictional character by recognizing the scope of legal protection available for it. In this way, the very two-fold object of law i.e., giving exclusive rights to the owner for using the mark and preventing others from using such mark of fictional character can be fulfilled.