Can literary characters be copyrighted?: Criticism of the “Story Being Told” Test and The Indian Status -II

In this post Prateek discusses the “story being told test” and discusses copyrightability of characters in the Indian context. This is the second part of Prateek’s two part post on whether literary characters can be copyrighted.


This is the second blog post emanating from the discussion of the D.C. v. Towle case, in which the 9th Circuit Court had to decide upon whether the Batmobile was a copyrightable character. The Court used a three pronged test, which was a reformulation of the principles espoused by the “Especially Distinctive” test. This was discussed (with considerable detail) in the earlier blog post and in this piece, I shall elaborate on whether I believe that the Court’s decision to exclude applying the “Story Being Told” test was appropriate. Unlike the other piece which aims to inform the reader of a recent development, this piece is more theoretical and aims to analyse the harms and benefits of the two. Post the theoretical analysis, I shall delve into the Indian scenario.

But first, I shall provide the reader with a brief explanation of the “Story being told” test itself. According to this test, a character is copyrightable if the story is essentially the character’s story itself. To understand this principle, let us consider the famous Sam Spade case. In this case, Warner Brothers bought the license for a story called the “Maltese Falcon”. Their claim was that by virtue of this license, they had gained exclusive rights over the character of Sam Spade as well and that the author was not entitled to sell a license to use Sam Spade to Columbia Broadcasting System without their permission.

 The Court rejected Warner Brothers’ claim and stated that ‘‘[I]t is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright’’.

The court said that characters that were not the story, but are only “vehicles for the story told” could not be provided with copyright protection. If the Court were to apply this test, there would be a very low possibility of the Batmobile (quite literally a “vehicle” as well) being copyrightable. In my opinion, the exclusion is in the interest of clarity and consistency and therefore is a welcome change.

To better understand the problem consider a scenario where the story is about the central character, but the central character is not sufficiently developed. In such a scenario, should Courts provide protection? If they do, that would be akin to protecting a stock character who is nothing more than an idea or theme.

As stated in the earlier post, only unique expression can be protected and not ideas or themes. The primary motivation of Intellectual Property Law is to facilitate progress in science and arts. Providing protection to a mere idea or theme runs contrary to this aim as artists will be stunted in their attempts to make use of overarching ideas and themes.

A remedy that might be suggested could be the requirement of passing both the tests. But  if characters have to pass both the tests, then those characters which are sufficiently developed but are not the main character will not be afforded protection. Law will fail in protecting “unique elements of expression” or “original authorship”. Therefore, it is in the best interests of copyright law to avoid the “Story Being Told” test altogether and strictly apply the “Especially Distinctive” test, while giving enough respect to the surrounding context in the second stage of infringement analysis.

Furthermore, if you were to closely consider the application of the two tests, the concerns of the “Story Being Told” test are accounted for on the whole. Consider this: After ascertaining that a particular character is copyrightable by either of these tests, courts enter into a comparative analysis that attempts to comprehend the extent of similarity between the allegedly infringing work and the original work to ascertain whether copyright infringement has actually occurred. In this second stage, courts cannot compare without considering the context/story in which the character is placed in. Hence, the “Especially Distinctive” test takes into consideration the concerns of the other test and is therefore, the best way forward.

Indian Context

Next, let us have a look at the status of law in India. I have reviewed considerable number of secondary resources and looked at whole judgments of landmark cases, but there is scant case law on the copyrightability of characters. Nevertheless, I have selected two cases which I believe are pertinent to our current analysis.

In V.T. Thomas v. Malayala Manorama (AIR 1989 Ker 49) , Justice K. Sukumaran impliedly established that literary characters can be protected under Indian Law. I say “impliedly” because the primary question in the case was regarding who owned the copyright, rather than whether the copyright existed in the first place. The Court did not discuss the cases under which conditions a character could gain protection.

In Raja Pocket Books v. Radha Pocket Books (1997 (40) DRJ 791), the question was whether the character “Nagesh” was infringing upon the copyright of “Nagraj”. Justice D. Gupta of the Delhi HC had a perfect opportunity to consider and establish the law concerning protection of literary characters, but instead he skipped the entire first stage of analysis. He jumped straight into a comparative analysis of the two characters, assuming that the character “Nagraj” was copyrightable. The Court has set a dangerous precedent by directly jumping into a comparative analysis, instead of first ascertaining whether the character of “Nagraj” does indeed deserve protection. If such a method is followed, generic stock characters will effectively be restrained from common usage.

Overall, the concerned law in India is quite underdeveloped and Courts will have to decide upon the manner in which they wish to go about protecting fictional characters. Though there have been vague and tangential references to ghosts of the “Especially Distinctive” test, Courts haven’t yet developed the law beyond the overarching and abstract concept of Idea and Expression. Even more problematic is the fact that courts rush into the second stage of analysis instead of first considering whether the original character under question deserves copyright protection or not.

In my opinion, the “Especially Distinctive” test should be the way forward and the reformulation arrived at in the Towle case is a neat consolidated formula that Indian Courts should consider adopting.

Chief References:

Copyright Protection for Fictional Characters

Image from here


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2 thoughts on “Can literary characters be copyrighted?: Criticism of the “Story Being Told” Test and The Indian Status -II”

  1. Harshavardhan Ganesan

    Great post! What is interesting to note, is the difference in terms of analysis when it comes to inanimate and animate objects (Quite literally). For example, when it comes to the Eleanor car from Gone in 60 seconds, the car acquires distinctive characteristics particularly due to the role it plays in the story as a whole. It is because it is a difficult car to drive, and ends up causing problems to the protagonist, that it has sufficiently distinct characteristics. Therefore, albeit being unmentioned I certainly think that when it comes to inanimate characters, the analysis is partially influenced at least by the story test

    What is more interesting to me, is the district court analysis in the DC v Towle case, regarding the functionality and utility of the batmobile, since America does not have a designs act akin to India ( Apart of course Design Patents which were not involved in this case)

  2. Hello Harshavardhan,
    Your animate/inanimate analysis is something I did not consider at all. Definitely seems like there is scope for some great analysis there. I’ll look into it a little deeper and get back shortly. Nevertheless, I’ll try to respond right away as well.
    I understand that you’re only making a factual claim regarding the usage of S. test for inanimate objects and I am not too sure about past judgments on inanimate objects (except Eleanor), but normatively I believe courts are doing a mistake by applying the S. test to inanimate objects. I understand that it is difficult for inanimate objects to have inherently distinct characteristics, but that should be a reason for disallowing copyright, rather than allowing for it. Irrespective of how significant the object might be to the storyline, it is finally the traits that are protected and not the role in the story. Therefore, only the traits should be analyzed. I would consider Eleanor’s limited ‘drivability’ as a characteristic and provide copyright based only on that.
    Furthermore, thought I need to look into this argument a little more, I’ll put my initial thoughts down. In the batmobile, case I think the judge made a mistake by underplaying the role of the batmobile’s appearance. Afterall, Gotham Garage only copied the appearance, not the idea of the batmobile. The analysis in the current judgment would be more apt if the idea of the batmobile was copied in another literary work.

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