IP Insights
Not Just Copyright: The Full IP Toolkit for Fictional Characters
Estimated : 8 Mins
The Indian film industry is undergoing a major shift in how it views and treats Intellectual Property Rights (IPR). Until recently, conversations around copyright were limited to music rights or film distribution. While Hollywood has long relied on character-driven franchises, India is now waking up to the reality that characters are independent IP assets, capable of generating revenue through sequels, remakes, merchandise, and brand collaborations.
Yet, Indian law around character copyright remains fragmented, with courts adopting inconsistent tests, creating uncertainty for creators and producers.
From Andaz Apna Apna’s “Crime Master Gogo” to Hera Pheri’s “Babu Bhaiya,” Indian courts and producers are grappling with who really owns a character, who can remake or license it, and how far its commercial exploitation can go. This change signals a turning point for Indian cinema, where characters are being recognized not just as creative elements, but as independent IP assets.
Copyright Protection of Characters in India
Statutory Basis
The Copyright Act, 1957 does not expressly list “characters” as protectable works. According to Section 17 of the Copyright Act, unless carved out differently in contracts, the producer (as the first copyright owner of the film) typically owns the characters. But, because characters are layered creations, it’s vital that contracts with writers and actors clearly transfer and assign character rights to the producer. It is essential to ensure that these characters are contractually secured and can be protected in different ways through copyright in their expression, trademark registration of their names or catchphrases, publicity rights where actors are involved, and merchandising rights to monetise their commercial value.
In a box
“Lock the Characters in Your Contract”
Producing the film gives you copyright, but not automatically the full rights to characters. Writers and actors must assign those rights to you in writing.
Judicial Tests Applied
Unlike the U.S., where tests such as the “distinct delineation” standard (Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930) are consistently applied, Indian courts have taken varied approaches: In India, however, the legal position remains unsettled. Courts have often refrained from expressly ruling on the copyrightability of fictional characters as independent works, choosing instead to decide disputes primarily on the issue of infringement of the underlying film, script, or artistic work. This judicial hesitation has left authors, producers, and filmmakers in a grey zone, where enforceability of standalone character rights is uncertain.
Adding to the complexity, Indian case law reflects inconsistent perspectives and at times a lack of clear understanding regarding whether characters can exist as copyrightable subject matter, separate from the films or stories in which they appear. For filmmakers looking to build franchises, spin-offs, or merchandise lines, this ambiguity creates commercial risk.
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Sufficiently Delineated Test
VT Thomas v. Malayala Manorama, AIR 1989 Ker 49- The court recognized copyright protection in cartoon characters where they possessed unique and distinct traits, making them identifiable and protectable.
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Substantial Similarity Test
Raja Pocket Books v. Radha Pocket Books, 1997 (40) DRJ 791- The court emphasized that the “safest test” is whether an average reader/viewer, after experiencing both works, gets an unmistakable impression of copying.
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Combination of Tests
Arbaaz Khan Pvt Ltd v. NorthStar Entertainment Ltd, 2016 SCC OnLine Bom 1812 (involving Dabangg)- The Bombay High Court used both the “sufficiently delineated” test and the “story being told” test, implicitly evaluating whether the character was integral to the narrative and whether the defendant’s character was too similar.
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Character Misuse for Commercial Gain
Disney Enterprises, Inc. v. Pankaj Aggarwal, 2018 SCC OnLine Del 10166- The Delhi High Court held that unauthorized use of Disney’s characters on school bags amounted to copyright infringement and passing off, recognizing the creativity and investment involved in character creation.
TABLE:
| Layer of Protection | How It Works | Advantage | Example |
|---|---|---|---|
| Copyright | Protects the original literary, dramatic, artistic expression of the character, including names, story arcs, and visual traits. | Automatic protection that prevents unauthorized copying in films, comics, adaptations, and related works. | Sherlock Holmes cases where later stories entered the public domain while distinctive character traits remained protected. |
| Trademark | Registers character names, titles, catchphrases, and visual symbols or logos associated with the character. | Renewable protection that strengthens control over merchandising, franchise extensions, and commercial branding. | Disney’s Mickey Mouse and the famous catchphrase “Mogambo Khush Hua”. |
| Right of Publicity | Protects against unauthorized commercial use of an actor’s likeness associated with the character. | Ensures producers retain commercial control over character exploitation and licensing opportunities. | Producers contractually securing likeness rights in disputes involving Rajinikanth-inspired portrayals. |
| Merchandising Rights | Controls the use of a character’s image or likeness on products such as toys, apparel, collectibles, and accessories. | Prevents passing off while creating significant merchandising and licensing revenue streams. | Disney v. Pankaj Aggarwal (Delhi HC), where unauthorized toy sales amounted to infringement. |
Strategy for Creators
Strategy for Creators
For producers and filmmakers, it is critical to recognise that using a character’s image or likeness without the owner’s consent, licence, or authorisation amounts to unlawful exploitation. Such use not only constitutes copyright infringement, but may also amount to passing off, by misleading the public into believing that the goods or content are authorised or associated with the producer who originally created the character.
Has to be added in box:
Courts have hinted that if characters from existing works are sufficiently transformed into distinct, unidentifiable versions, infringement may be avoided. This principle, while often applied in the context of fan fiction, has implications for remakes and adaptations too. It essentially blurs the line between a legitimate homage and an unauthorised exploitation.
Name
A character’s name by itself is generally not protected under copyright, since copyright does not cover words or short phrases. However, if the name has acquired distinctiveness and goodwill, it can be protected under the Trade Marks Act and through the common law tort of passing off. For example, names like “Shaktimaan” or “Chhota Bheem” function as brands and enjoy trademark protection.
Visual Appearance
The way a character looks, including its costume, design, sketches, or unique artistic representation, can be protected as an artistic work under the Copyright Act, 1957. If the character’s appearance is strongly associated with a film or series, copying that look without permission could amount to infringement. This is also why animated characters like Disney’s Mickey Mouse are heavily protected.
Right of Publicity
This is the trickiest area. Traits like catchphrases, quirks, or mannerisms may not be protectable on their own. However, if the traits, taken together, form a “sufficiently delineated” character (as Indian courts hinted in VT Thomas v. Malayala Manorama), then copying them could amount to infringement. In practice, courts assess whether the character is so distinct that the public identifies it as unique.
Narrative Arc / Role in Story
The character’s role in the broader plot, including its backstory, evolution, and narrative significance, may qualify for protection if it is central and original. In cases like Arbaaz Khan Pvt Ltd v. NorthStar Entertainment (the Chulbul Pandey dispute), courts considered how integral the character was to the story while assessing protection. Since Indian courts have not laid down a definitive test, this area remains legally grey.
Summary:
Since a character has a tangible existence only within the copyrighted work in which it appears, producers and filmmakers must draft contracts, assignments, and licences with extreme precision. Clear agreements are essential not only to avoid disputes over who controls the rights to beloved characters but also to unlock opportunities for monetization such as merchandising, licensing, sequels, remakes, and adaptations. By strategically leveraging trademark, merchandising rights, and spin-off potential, characters can become valuable assets beyond their original appearance, generating revenue and expanding the franchise in multiple ways.
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