The document discusses various aspects of protecting fictional characters under copyright and trademark law. It provides an overview of the different tests courts have used to determine whether a literary character qualifies for copyright protection, including the distinct delineation and story being told standards. It also explores how characters can be protected when aspects enter the public domain, and the requirements for trademark protection of well-known fictional characters. Overall, the document examines the challenges of protecting literary characters that lack a visual representation compared to graphic characters.

1. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
PROTECTION OF FICTIONAL
CHARACTERS
FILMA VARGHESE
TRADE MARK DEPARTMENT
COPYRIGHT ISSUES IN DIGITAL MEDIACOPYRIGHT ISSUES IN DIGITAL MEDIACOPYRIGHT ISSUES IN DIGITAL MEDIA

2. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
INTRODUCTION
• How an originator can protect their creations when the creations are
literary characters?
• At what point of time does a character become entitled to legal
protection?
• Protection available to characters that, have already entered the public
domain, but is subsequently cast in new copyrighted work.
 Copyright and Trademark
 The law of unfair competition
 Literary characters must be clearly delineated and defined as
recognizable
 Unique independent characters
 The use of images and other identifying attributions

3. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Characters: Graphic and Fictional
Characters can be differentiated into two categories - Graphic
characters and Fictional characters.
It is necessary to differentiate them and deal with them separately
because the courts have themselves granted different levels of
protection by laying down different tests to determine whether a
character can be granted copyright protection.
Graphic characters - A graphic character is one, which can be
depicted by a cartoon or other graphic representation. The physical
appearance and characterization are visually apparent for the readers.
Literary characters – Literary characters are described in words and
up to the audience to visualize these characters. Such imagination is
brought about by reading about the character through the pages of a
book and not just by reading a single paragraph or line. Therefore, the
character is not apparent for the reader.
Literary characters are at a disadvantage when graphic characters have
more protection because of their visual representation.

4. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
PROTECTION FOR GARPHICAL
AND FICTIONAL CHARACTERS
Character – A character comes from the mind of a person who has created
the character as fixed in tangible form in published or unpublished works.
COPYRIGHT
Copyright is a person’s exclusive right to reproduce, publish or sell his or
her original work of authorship. Works of authorship include literary,
musical, dramatic, artistic and architectural work. The Copyright Act of
1976 protects published or unpublished works that are in fixed in a tangible
form of expression. The Act does not protect ideas.
TRADE MARKS
Trademark is any word, name, symbol or device used by a person; and or
which a person has an intention to use in commerce to identify and
distinguish their goods, including a unique product, from those
manufactured or sold by others and to indicate the sources of the goods,
even if that source is unknown.

5. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
CONTINUED….
Graphic characters can be copyrighted and trademarked, but literary
characters are harder to protect because of the lack of physical visual
representation like graphic character.
No express provisions in the law, which could grant copyright protection
to characters. The courts have not been hesitant to grant copyright
protection to graphic characters, but when it comes to fictional
characters, the courts used various tests developed over the ages, to
determine whether a character is well delineated or not. If the character is
found to be extremely well developed, unique and has a personality
different from other characters, only then is a copyright protection
granted to such a fictional character.
The value of giving detailed description to a character will benefit not
only the character’s potential future in business, but will benefit the
creator in owning all rights to the character in multiple visual business
avenues.

6. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Protecting Fictional characters
under Copyright Law
A literary work is entitled to protection for the
purposes of intellectual property. Whether this
protection should be extended to the fictitious
characters within, and separate from the work,
remains uncertain.
A fictional character has three identifiable and
legally significant components: its name, its physical
or visual appearance, and its physical attributes and
personality traits or “Characterization”.
Granting fictional characters has been judged on a
case-by-case, court-by-court, basis.

7. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Distinct Delineation Standard or
Character Delineation
This test helps to determine whether the character is copyrightable.
The distinct delineation inquiry emerged from the case of Nichols
V. Universal Picture Corp. The plaintiff, Nichols, accused
Universal for using similar characters from her play, for their film.
The Judge’s main concern was making sure fictional characters
were protected under their original work, but the ideas of characters
could be left for the public domain to be able to use without penalty.
Judge Learned Hand determined for a character to be protected
independently from the original plot, they would have to be a
distinct delineation. He explained the more indistinct the character
is written, the less protection the character will receive, thus putting
it in the category of an idea of expression. In this specific case, he
concluded the characters were not similar, then making distinct
delineation equally as undefined as before.

8. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
‘Story being told’ standard
A different test was applied in Warner Brothers Pictures V. Columbia
Broad-casting Systems, where the distinctively delineated standard was
replaced with the ‘story being told’ standard. In this case the court stated:
“No character is protectable under copyright law unless the character is
extremely well-delineated as to constitute “the story being told” rather than
merely being a chess man in the game of telling the story. This indicates
that the story has to revolve around the particular character, which is
sought to be protected. This standard has been applied in cases like
Universal City Studios V. Kamar Industries where the character ET was
held copyrightable component of plaintiff’s movie, was a ‘unique and
distinctive character about whom the movie revolved’.
The problem with the story being told standard is that, it envisages a story
devoid of any plot, wherein character study constitutes all, or substantially
all of the work. There may be rare examples of such works but for most
practical purposes, such a rule if followed would effectively exclude
characters from the orbit of copyright protection.

9. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Dilution of the “Story Being Told”
Standard
The decision in favor of the plaintiff in the Air Pirates case did
not explicitly over rule the “Story being told” standard. But the
court went on to state that, the Sam Spade decision was based on
the recognition that “it is difficult to delineate distinctively a
literary character… put another way… many literary characters
may embody little more than an unprotected idea.”
Therefore, it appears that even if the “story being told standard’
is not met, the character can be copyrighted, provided it
sufficiently developed and finely drawn so as to cross the line
from ‘idea to expression’.

10. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
CONTINUED….
An analysis of the various case laws reveals that the
courts consider a character to be an expression and
hence copyrightable, only when it is sufficiently
delineated. Therefore the character delineation test can
be said to be the point where an idea converts itself to
an expression and hence becomes protectable. But this
would always remain a subjective concept. It is upon the
court to determine whether the character is sufficiently
delineated. Hence every such dispute over character
protection has to be dealt with on a case to case basis
and no objective standard can be laid down to determine
the same.

11. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
What is the protection when some part of the character
enters the Public Domain and later it is cast in a new
copyrighted work?
The case of Silverman V. Columbia Broadcasting
Systems seems to have settled this controversy by
stating that the character may be entitled to protection
for any new traits that have been added in the
subsequent work, but the character is not protected as to
traits, which were available in the original work. This
implies that anyone can use the character that has
already entered the public domain. But when the new
traits are also added on to the character and the
subsequently portrayed before the reader, a copyright
violation takes place only to the extent of the new
character traits that have appeared in the subsequent
work.

12. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Protecting Fictional characters under
Trademark Law
Trademark only provides legal protection for well
known fictional characters who have well known
names, appearances, and have been circulated in the
public for a long period of time. When the fictional
literary character is used to promote a product, they
must be looked at as the spokesperson. The consumer is
relying on them to advertise a product they might want
to be or a service they will want to use. The character is
not only a spokesperson but the representative of the
product.

13. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
The case laws have revealed that a character can
certainly be granted copyright protection, provided,
they are distinctly delineated so as to form the story
being told. But determining ‘ownership’ over that
character i.e., the copyright over it still remains a
crucial factor, because a number of people share a
common interest over the character. It is settled law
in every jurisdiction that the creator of a work is the
person with whom the copyright over the work vests.
Applying this rule, the one who creates a character is
always considered to be the owner of it.
CONCLUSION

14. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
THANK YOU