Intellectual Property RIghts: Conundrum of Fiction Characters in Cartoons: Which is better Copyright or Trademark? Should there be certain standards governing the content?

 Conundrum of Fiction Characters in Cartoons: Which is better Copyright or Trademark? Should there be certain standards governing the content?

by Harmanjot Kaur 

In the age of digital media, new technologies and globalization, we have observed significant changes in the way we perceive the world. It comes down to the point where we choose between watching the Mahabharata movie or the widely known Cindrella’s cabaret. Today, in a world full of choices, it is evident that most of the time the intellectual property rights get hazy, which makes it difficult for the creator to choose the right course of action. This domino effect makes the creator depressed, which results in a lack of creativity, innovation and novelty for the young pioneers to land in the field of science, art and technology.

The history of technological change shows that new forms of expression have invariably led to new types of creative works.[i] Keeping an eye on the hot-topic pertaining to science and multimedia, today we have found that there are various instances where their rights are usually violated. Recently, the name of Japanese manga character Shin Chan has reportedly appeared on the merit list of a college in West Bengal.[ii] Another famous character, Doraemon was entitled as his guardian.[iii] However, there are various instances where these cartoons are banned in India and raised international concerns. In 2008, India’s Ministry of information and broadcasting had banned Shin Chan, keeping an eye on the protagonist’s mischievous and alacrity towards decent ethics pertaining to healthy parents-children relationship.[iv] Certain Doraemon’s episodes turned attention of Gwalior High Court where children were requesting Nobita’s father to do make smoke rings from lit cigar.[v]  Should there be stringent laws? Should a standard for copyright, trademark and intellectual property be taken into consideration?

Careful analysis shows us the incompetency of digital media to be used as a medium for conducting exams in India. There should be due scrutiny before making the data available openly in the public domain. The reliability of Artificial Intelligence is yet in its progressive stage, and hence we should rely on human intervention to keep a check on various systems.

What does the law say?

According to the Section 51 of the Copyright Act, a work shall be deemed to be infringed inter alia when any person, without a license granted by the owner of the copyright or the Registrar of the Copyright Act, contravenes the conditions of the license so granted or of any condition attached by the competent authority, does anything which infringes the rights of the copyright owner.[vi] In other words, we can say copyright protects original works created in a fixed form including "literary, dramatic, musical, artistic, and certain other intellectual works." For example, a firm, organisation can copyright its books, reports, audio or video materials. Work is automatically copyrighted at the time of creation; however, registration is required if an individual, organisation wants to sue over the use of the material by another party.[vii] In the leading case of Nichols v. Universal Pictures Corp.[viii], Justice Learned Hand stated, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly[ix].”[x] This explicitly demonstrates the intend of the legislature to promote novelty, creativity, invention of the new creation which could inculcate thinking out of the box and inspire imaginative, resourceful and productive innovations to come forth. The legislature also implicitly promotes the scientific intellect to question the present scenario, inspire new and original ideas in order to promote creativity over rote-learning and antiquated techniques.

The legislature wants people to carve out new and innovative steps in the field of science and technology. In the case of My Favourite Martian, Starman, Alien Nation, Transformers, District 9, Predators[xi], and The Man Who Fell to Earth, the recurring theme of ET-Extra Territorial Life was discussed. It was stated that this was a recurring theme. The legislature, implies the message of ‘scientific temperament’ in this case where it shifts the focus from traditional ideas about aliens such as ‘a stranded alien character, without embellishment’. This accordingly was not protected under the copyright act. The idea behind the judgement focuses on building curiosity and intellect among individuals. The basic science teaches us about the formation of life based on four fundamentals i.e. lipids, proteins, carbohydrates and nucleic acids. What if the aliens are made up of any other matter? What if they were a century ahead of our civilization? What if they communicate in a different language? What if they eat differently than us? What if the evolution of human species started out of some extra-territorial life forms, which came along the meteorites which destroyed dinosaurs? Such are the deep questions which the legislature wants to invoke among youth to have a new perspective of life. 

Continuing the discussion on ET-Life forms another case law, Lokey From Maldemar, featured an alien with powers of levitation and telepathy, stranded on earth who was pursued by authoritarian characters. The playwright sued the owners of the movie E.T.—The Extra-Terrestrial, claiming that her character was infringed. A federal court disagreed, saying that the character from Lokey was too indistinct to merit protection in Litchfield v. Spielberg[xii].[xiii] This again shows how the law making authority values novelty and originality. The claim of telepathy can be over-ruled by the fact that every particle which is having a frequency above zero, radiates energy and waves, which could help the body to communicate. So, telepathy is wholly a scientific concept which the judiciary wants the youngsters to know and appreciate. However, once a stranded alien character acquires more distinctive features or aspects—for example, a big-headed, long-necked alien with a glowing finger who murmurs “Phone home”—it becomes distinct enough to avail the protection and its owners can prevent others from using the character's image and expression. There should be less ‘substantial similarity’ on the part of the characters.

Another important topic related to intellectual property is trademark. A trademark protects "words, names, symbols, sounds or colours that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods." This means that a company can register a trademark for its business name, slogans, logos and other items that essentially brand the product or company.[xiv]

In the case of Walt Disney Prods. v. Air Pirates[xv] the defendants acknowledged the copying of the names and appearances, but placing them in very different situations than those used by Disney, of more than seventeen Disney fiction characters for use in their adult, counter culture comic books. The court rejected the defendant's claim by the contention of fair use defence, but noted that most of the previous cartoon character infringement cases "have considered the character's personality and other traits in addition to its image". In this case Disney is protected as a trademark and its content is protected under copyright. Thus, we can find that both trademark and copyright play a vital role in our lives.

 

What is the importance of Intellectual Property Rights pertaining to Fiction Characters?

• Fiction characters form the basic source of revenue for the entertainment and merchandising agency.

• It is a source of income generation for the company, inventors and stakeholders.

• It protects the ‘exclusive right’ to sell, purchase, exploit the creation of the author. Moreover, it generates market value of the product.

• It attaches certain ‘standards’ related to quality and ‘goodwill’ of the company. It provides protection against ‘unfair competition’ relating to issues such as misappropriation, sponsorship, misrepresentation and ambush marketing.

• The owner gets the ‘monopolistic right’ over the creation which gives him confidence and helps to compete global market.

•  It promotes novelty, creativity, innovation, ownership over the ‘intangible property’. This in turn, allows new-comers to be motivated and enthusiastic about their creation.

•  It protects the creator against the piracy, buccaneering, plagiarism, freebooting. The owner of the ‘Intellectual Property’ can claim compensation against swashbucklers.

How to choose between copyright, trademark and other laws?

The financial capital is not the sole basis of a company’s revenue and financial generation. There are many other areas such as goodwill, standards of quality, reputation attached to a particular brand name. In order to protect against the unfair and illegal use of the art-work, there are various rights protecting the Intellectual Property. For example, in case of a magazine, the logo, symbol, tagline would be included in the Trade Mark, while the content written by the authors in that magazine is protected under the Copyright Act.[xvi] Below are some of the comparisons which could help to decide which of the two is better.

• Copyright is geared toward literary and artistic works, such as books and videos. A trademark or service mark protects items that help define a company brand, logo, symbol, design, shape which provides a unique mark to that company or organisation.[xvii]

• Copyright register the underlying work that incorporates the fictional character. Trademark register the fictional character's name or unique articulation, accent, voice tone, pitch, verbal expression.

• Copyrights protects creator, creative or intellectual works, and trademarks apply to commercial names, phrases, and logos, slogans.

• Copyright as a broad rule last for 60 years. In case of cinematograph films, photographs, sound recordings, posthumous publications, autonomous, pseudonymous publication and international works such as journals etc., the 60 years period is counted from the date of publication.[xviii]

• On the flip side, trademark sustains for a time period of 10 years from the date of application. It can be renewed after the period of 10 years by a renewal application.

 

Thus, we can conclude that copyright forms the base of the creation. It protects the author, content writer. However, there are still grey areas related to the IP Law. Copyright and trademark are both important protections and, when understood properly, can be used to protect products and artistic creations efficiently. Knowing the scope of rights and the ways IPR work can help to make the most of the work and can prevent costly and trying legal battles.

In the light of the above discussion, we can conclude that there should be governing rules which should be regarding the decent standards such as ethics, morale, integrity in order to balance the system. We have observed great scientists such as Panini, Charak, Aryabhatta, etc. who have contributed tremendously in the fields such as science, health, art, grammar etc. But they are not recognized worldwide like that of the western scientists. Hence, we should not ignore our culture and traditions. Efforts such as Startup India, PM Kaushal Vikas Yojna, Promotion of MSME should be encouraged. There should be a system of checks-and-balances which could strike before allowing the foreign market to allow the liberalization, privatization and globalization a balance between the domestic productions in this world of international arena and sublimation of various cultures into one!

 

---

[i] 3 M. Turner, ‘Do the old legal categories fit the new multimedia products? A multimedia CD-ROM as a film’ [1995] 3 EIPR 107.

[ii] Japanese cartoon Shin Chan makes it to the merit list of WB college, , OpIndia (2020), http://www.opindia.com/2020/09/bengal-sunny-leone-neha-kakkar-cartoon-shin-chan-name-merit-list-doremon-guardian-college/ (last visited Sep 25, 2020).

[iii] Madhya Pradesh: Vyapam scambuster blows whistle on ‘violent’ Doraemon | Bhopal News - Times of India, , The Times of India , https://timesofindia.indiatimes.com/city/bhopal/Madhya-Pradesh-Vyapam-scambuster-blows-whistle-on-violent-Doraemon/articleshow/53495025.cms (last visited Sep 25, 2020).

[iv] Id.

[v] Id.

[vi] Section 51 in the Copyright Act, 1957, , https://indiankanoon.org/doc/1038145/ (last visited Sep 25, 2020).

[vii] Differences Between Copyright and Trademark, Small Business - CHRON.COM, https://smallbusiness.chron.com/differences-between-copyright-trademark-3218.html (last visited Sep 25, 2020).

[viii] 45 F.2d 119 (2d Cir. 1930)

[ix] Copyright & Trademark – REDMIL, , https://redmil.in/copyright-trademark/ (last visited Sep 25, 2020).

[x] Brian Farkas, Protecting Fictional Characters Under U.S. Copyright Law, WWW.NOLO.COM, https://www.nolo.com/legal-encyclopedia/protecting-fictional-characters-under-copyright-law.html (last visited Sep 25, 2020).

[xi] Id.

[xii] 736 F.2d 1352 (9th Cir. 1984)

[xiii] Farkas, supra note 10.

[xiv] Differences Between Copyright and Trademark, supra note 7.

[xv] Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), 1.

[xvi] Character Merchandising, 69.

[xvii] Brian Farkas, Protecting Fictional Characters Under U.S. Copyright Law, www.nolo.com , https://www.nolo.com/legal-encyclopedia/protecting-fictional-characters-under-copyright-law.html (last visited Sep 25, 2020).

[xviii] 12_chapter 3.pdf, , https://sg.inflibnet.ac.in/bitstream/10603/134556/12/12_chapter%203.pdf (last visited Sep 25, 2020).