Copyright in Characters- III (Indian Decision)

In the last two posts, 2 US decisions on copyright protection to characters were discussed and having deliberated to a certain extent on the topic, it would be of much more use to look at the Indian position. I thank Ms.Swathi Sukumar for directing me to the judgment delivered in 1996 by the Delhi High Court in Raja Pocket Books (Plaintiff) v. Radha Pocket Books (Defendant) which dealt with copyright protection for characters.

The plaintiff in this case sought temporary injunction against the defendant to prevent circulation of any kind of promotional material in any manner under the name “Nagesh”, which, according to the plaintiff, infringed its copyright in its character “Nagraj”. The plaintiff further alleged that the defendant’s release of its (defendant’s) comic series called “Nagesh” amounted to misrepresentation because the character closely resembled the plaintiff’s i.e. the character was “Nagraj-like”.

The plaintiff submitted to the Court that in its eponymous comic series, “Nagraj” was the central character and was dressed in green which was an allusion to his serpentine skin and wore a belt which was designed like a snake. The whole series, according to the plaintiff, revolved around the exploits of this character which entitled the plaintiff to copyright in the series as well as the character, its get up and appearance. The title character, in the comics is brought to life by a herpetologist (ahem…Snake expert), has Voldemort-esque powers in that he has power over snakes which are released from his body (I request the readers to bear with these pedantic details; it’s a children’s comics after all) and at the behest of a noble hermit, he decides to put his powers to good use.

The defendant’s title character “Nagesh” too is depicted in almost the same fashion with a slight alteration in the storyline. Nagesh is created when a herpetologist brings a dead person back to life using errr…a snake pearl. This character too uses his powers against crime on the advice of a sage. He too dresses in a green coloured body stocking. Does the character of the defendant “Nagesh” infringe the plaintiff’s copyright in “Nagraj”, if at all there exists one?

Let’s analyse this in the light of the observations made by the US Court in the Star Wars case. In Star Wars, the Court held that for characters to be bestowed with copyright protection, they are expected to bring an element of distinctiveness through their traits i.e. hypothetically speaking, if characters of a run-of-the-mill love story are to qualify for copyright protection, they must distinguish themselves significantly from most characters used in this genre or though belonging to an existing genre, the very features possessed by the character must distinguish the storyline. This is true of most superhero comics because the traits of Superman are different from that of Spiderman and so and so forth. So if one were to introduce a character who is an alien, who can fly and is susceptible to weakness in the presence of a piece of rock from his home planet, chances are that the character infringes Superman.

The other possibility could be that the particular circumstances in which an old theme is set could distinguish the movie from the rest in its genre and yet the characters of the story could be ordinary individuals with no characteristic features; but in such a case, I believe, the characters are not copyrightable in themselves. Of course, this possibility is not relevant to this case. So the character of the plaintiff “Nagraj” appears to be copyrightable owing to his distinctive features. Further, going by the standard of a customer of reasonable intelligence, it would appear that both the characters are substantially similar in content and appearance. This means that the one which was created prior in time is infringed by the later one.

The defendant attempted to support the use of his character by casting aspersions on the priority of the plaintiff’s creation but this was rebuffed effectively by the Court on the basis of the evidence submitted by the plaintiff. As for the similarity in appearance, the defendant sought to counter the plaintiff’s allegation of misrepresentation by saying that the use of the colour green to represent snakes or snake-like beings was common to the trade and the plaintiff cannot usurp this practice to himself. Such arguments are common to trademarks or trade dress cases; for instance, if red and white colours represent the teeth and gums, then the use of these colours on a toothpaste tube may not be considered distinctive enough for grant of rights for exclusive use. But can this argument hold water in this case?

True, the colour green has, over a period of time, come to represent envy, jealousy or cunningness or snake-like qualities, but the fact that it was being used in this case for a character who had power over snakes and which use was original given the context, qualified the use for copyright protection. If there’s an iceman, one would probably expect him to be in white, but the use of this colour combined with the fact of its use to depict a character with unique characteristics vests the creator with copyright in the depiction. A popular example would be the Onida (which in Japanese means the devil) advertisement where the devil is shown. If this were to be used by some other television manufacturer, probably he would infringe the copyright of Onida despite the fact that Onida has no copyright in the devil’s portrayal as such. This means that practices which are common to the trade may not be copyrightable in themselves, but their novel use in certain instances may be copyrightable. Therefore, the use of the colour green to depict a superhero with the powers of a snake prevents others from identical/similar use.

Now, let’s look at what the Delhi High Court had to say on all the above discussed issues. The Court’s analysis was based on the interpretation of s.51 of the Copyright Act in R.G.Anand v. Delux Films. The Court observed that grant of copyright is confined to form, manner, arrangement and expression of the author and that in cases where different authors take inspiration from the same source, similarities are bound to creep in, which need not amount to infringement of the first author’s copyright. In these cases, the Court noted, it becomes imperative for the Court to look for similarities in the modes of expression, which if found substantial at once, leads one to conclude that the later work infringes the former in time.

The Court then got down to comparing the various elements of the characters in question and the storylines as well. It is probably safe to conclude that even when one discusses the vestation of copyright in characters, a discussion of the storyline or the context is unavoidable for it is the storyline which helps in fleshing out the salient features better. The Court first noted the striking similarity, phonetic and semantic, in the names of the characters “Nagraj” and “Nagesh” which in effect meant the same. Then there’s the fact of their visual portrayal and not just “word portraits” being nearly the same. Lastly, both characters had almost the same powers and were created in more or less the same way making it difficult to conclude that there was no intention on the part of the defendant to misrepresent or atleast take advantage of the plaintiff’s character. Taking advantage of the popularity of a theme or a fad is one thing and aping the very form or presentation is quite another. The Court pointed out that the changes, if any either in the appearance or portrayal of the character or the sequence of narration, were but inconsequential (“cosmetic”, if i may) and hence found prima facie infringement of the plaintiff’s character.

In all these cases, we saw that it was easier to decide copyright infringement of characters because the parties were in the same or related field of activity which fact allowed the Court to analyse and impute motives behind the use of characters. But if a particular fictional character, and a popular one at that, were to be used to sell a product which is nowhere near the field of the activity in which the character was originally used, would it still amount to copyright infringement of the character? Stated otherwise, the question here is if the copyright to a particular character is enforceable only against a person from the same or related field or is it available against anyone irrespective of the field of activity? This is a “dilution-like” argument and fortunately, there are cases available on this. (James Bond Case)