The conflicting interests in copyrightability of fictional characters

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

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The conflicting interests in copyrightability of fictional characters

  1. 1. Dr. Tabrez Ahmad, techolexindia.blogspot.in, 1
  2. 2. Dr. Tabrez Ahmad, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 5
  6. 6. COPYRIGHTABLITY OF FICTIONALCHARACTER1. Distinct Delineation Test2. "Story Being Told" Test3. “I know it when I see it”. Dr. Tabrez Ahmad, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 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, techolexindia.blogspot.in, 17
  18. 18. Dr. Tabrez Ahmad, corpolexindia.blogspot.com, 18
  19. 19. Dr. Tabrez Ahmadhttp://technolexindia.blogspot.in 19
  20. 20. Dr. Tabrez Ahmad, techolexindia.blogspot.in, 20

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