The conflicting interests in copyrightability of fictional characters


Published on

6th Global IP Convention 23rd to 30th January 2013

  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

The conflicting interests in copyrightability of fictional characters

  1. 1. Dr. Tabrez Ahmad,, 1
  2. 2. Dr. Tabrez Ahmad,, 2
  3. 3. Agenda Introduction To find whether fictional characters are copyrightable Fictional Characters, their types and composition Copyright law regarding fictional characters in US The two-part test for copyright infringement of fictionalcharacter Issues and weaknesses of copyright law protecting characters Alternative protections Indian scenario regarding copyright ability of fictionalcharacters Conclusion Bibliography Dr. Tabrez Ahmad,, 3
  4. 4. IntroductionFictional characters, being a multi-dollar game, needs strongprotection. However, there is no statutory right both in US andIndia to protect the same and even courts have approachedfictional characters very inconsistently.There is a need to ponder on the following issues: To find whether fictional characters are copyrightable What amounts to infringement of fictional characters? What other alternative protections are available to owner of a fictional character( besides copyright law)? Dr. Tabrez Ahmad,, 4
  5. 5.  “Lord Bowen once sagely remarked: Law should follow business.’” Fictional characters are the backbone of a multi-billion-dollar industry. Purpose of copyright and idea expression debate regarding character. Fictional characters – their types (Pure, Visual, Literary,Cartoon). Components of fictional character. Dr. Tabrez Ahmad,, 5
  6. 6. COPYRIGHTABLITY OF FICTIONALCHARACTER1. Distinct Delineation Test2. "Story Being Told" Test3. “I know it when I see it”. Dr. Tabrez Ahmad,, 6
  7. 7. Distinct Delineation TestLaid down in Nichols v. Universal Pictures Corp 45 F.2d 119 (1930)Followed in : Olson v. National Broadcasting Co 55 F.2d 1446 (9th Cir. 1988) Detective Comics, Inc. v. Bruns Publications 111 F.2d 432 (1940) Nimmer’s opinion. Dr. Tabrez Ahmad,, 7
  8. 8. "Story Being Told" Test Laid down in - Warner Bros. Pictures, Inc. v. Columbia Broad. Sys. Inc. 216 F.2d 945 (9th Cir. 1954). - Nimmer’s criticism Universal City Studios v. Kamar Indus 1982 Copyright L. Decisions (CCH) ¶ 25,452 (S.D. Tex. 1982). Dr. Tabrez Ahmad,, 8
  9. 9. "I know it when I see it" test. Laid down in Jacobellis v. Ohio 378 U.S. 184, (1964) Justice Stewart "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["obscene" ]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . ." Extended to Gaiman v. McFarlane 360 F.3d 644 – its criticism Dr. Tabrez Ahmad,, 9
  10. 10. Test of infringement ofcopyrightability of characters. The primary test used to determine infringement is by comparing the degree of substantial similarity between the original character and the alleged infringer. However, difficulties arise in distinguishing the point where similarities become substantial enough to constitute copyright infringement Dr. Tabrez Ahmad,, 10
  11. 11. ISSUES AND WEAKNESSES OF COPYRIGHT LAWPROTECTING CHARACTERS Separating Characters from Their Work Extending the Character into Subsequent Works – Silverman v. CBS 870 F.2d 40. Visual Characters v. Literary Characters relying on Walt Disney Productions v. Air Pirates and Warner Bros., Inc. v. American Broadcasting Co. Pure Characters - Columbia Broadcasting System v. DeCosta Dr. Tabrez Ahmad,, 11
  12. 12. RECOMMENDATIONS: ALTERNATIVEPROTECTIONS Trademark and Unfair Competition require a character to acquire a "secondary meaning" with a widely-recognized source in order to receive protection and further requires a showing of a "likelihood of public confusion." Protected "ingredients" are broader under a trademark than a copyright regime and may include a characters name (Tarzan), physical appearance and costumes (Superman) and other phrases associated with a character. Dr. Tabrez Ahmad,, 12
  13. 13.  Right of Publicity provide protection against commercial exploitation of an actors name, face, or voice. the right of publicity may be misinterpreted when applied to fictional characters by confusing the creator with the character. Misappropriation the "thing" allegedly appropriated (the "quasi-property") must be created by a substantial investment of time, effort, and money. the defendant must appropriate this "thing" at little or no cost the plaintiff must be injured by the misappropriation, ordinarily by a diversion of profits. Dr. Tabrez Ahmad,, 13
  14. 14. INDIAN SCENARIO REGARDING COPYRIGHTABILITY OFFICTIONAL CHARACTERS. “artistic works” in India reveals “a painting, a sculpture, a drawing, an engraving or a photograph, a work of architecture, a work of artistic craftsmanship” King Features Syndicate Inc. & Ors. v. Sunil Agnihotri & Ors. on 11/4/1997 (unreported) Raja Pocket Books v. Radha Pocket Books Dr. Tabrez Ahmad,, 14
  15. 15. CONCLUSION The craze over professional wrestling involving fictional characters shows just how important they can be. Yet the current law of copyright is very unsettled and vague, thus making it difficult to know when a character has been sufficiently developed so as to be copyrightable. Dr. Tabrez Ahmad,, 15
  16. 16. Sources: Gregory S. Schienke, The Spawn of Learned Hand-A Reexamination of Copyright Protection and Fictional Characters: How Distinctly Delineated Must the Story Be Told? 2005 9 Marq. Intell. Prop. L. Rev. 63 Leslie A. Kurtz, The Independent Legal Lives of Fictional Characters, 1986 Wis. L. Rev. 429, 440 (1986)). Leon Kellman, The Legal Protection of Fictional Characters, 25 Brook. L. Rev. 3, 6 (1958). E. Fulton Brylawski, Protection of Characters--Sam Spade Revisited, 22 Bull. Copyright. Socy. 77, 78 (1974). Kenneth E. Spahn , The Legal Protection Of Fictional Characters, 9 U. Miami Ent. & Sports L. Rev. 331 Steven L. Nemetz, Copyright Protection of Fictional Characters, Intellectual Property Journal (1999-2000) Dr. Tabrez Ahmad,, 16
  17. 17. Cases Referred: Warner Bros. Pictures, Inc. v. Columbia Broad. Sys. Inc., 216 F.2d 945 (9th Cir. 1954). Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) Universal City Studios v. Kamar Indus 1982 Copyright L. Decisions (CCH) ¶ 25,452 (S.D. Tex. 1982). Gaiman v. McFarlane 360 F.3d 644 Silverman v. CBS 870 F.2d 40 (2d Cir.) Walt Disney Productions v. Air Pirates 581 F.2d 751 Columbia Broadcasting System v. DeCosta 377 F.2d 315 (1st Cir. 1967). Dr. Tabrez Ahmad,, 17
  18. 18. Dr. Tabrez Ahmad,, 18
  19. 19. Dr. Tabrez Ahmad 19
  20. 20. Dr. Tabrez Ahmad,, 20