The Hazy Realm of Intellectual Property and Fanfiction


A fictional character is an imaginary person, created as a part of creative products like movies, art, plays, literature, etc. These characters are often played by an actor, graphically portrayed, or represented in a form of a word portrait where numerous attributes of the character are described in a detailed manner. Characters like Batman, Harry Potter, Percy Jackson, Iron Man, Sherlock Holmes, Captain Jack Sparrow have become an integral part of superhero fanbase cultures since our childhood days. Creators and owners of these fictional characters derive profits as well as goodwill from these characters. To prevent duplication and unauthorized use of such creative work by another party, copyright laws play a vital role. The existence of fictional characters apart from the creative work from where they arise has been recognized by copyright laws around the world.

Fanfiction as the name suggests is stories written by fans. These stories have characters and plots based on the original creative work. Fanfiction helps in fulfilling the emotional need for expression and wish fulfillment. It also helps in forming fandoms who share similar interests. The legal status of fanfiction is still murky due to issues of property and ownership. In this article, we will be discussing the legal intricacies regarding fanfictions and fictional characters.

IP and IPR

According to World Intellectual Property Organisation, “Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” The term “intellectual property” is used to describe ideas, inventions, and creative and literary works, as well as commercial firms’ names, images, and symbols. Intellectual property’s goal is to safeguard and nurture innovative and creative ideas for the benefit of the general public while also ensuring that profits from the exploitation of the innovation go to the innovator. It allows individuals and businesses to take control of their innovation and prevent others from profiting from it without their permission.

The four most discussed Intellectual Properties are; trademarks, copyrights, patents, and trade secrets. In this article, we will focus on trademark and copyright issues pertaining to fictional characters and fanfictions.

Copyright and Fictional Characters

Fictional Characters are either represented in a form of a word portrait or pictorially. Since the pictorial representation of characters is much more identifiable than word portrait, they are easier to protect outside the sphere of their original work compared to their literary counterparts whose physical and other attributes are residing in the minds of their readers.

The US Copyright Statute of 1976, doesn’t specify fictional characters as the subject matter of copyright, their copyrightability is determined by common law. Characters have traditionally been accorded copyright protection as elements of larger protected works rather than as standalone creations by the courts. They were classified as “components in a copyrighted work” and hence entitled to protection. Characters were finally recognized as separate works from the plot in which they were embodied in the case of  Nichols v. Universal Pictures in 1930. Following Nichols’s judgment, the American legal system has developed two basic standards for determining whether a character in a work is eligible for copyright protection.

Character Delineation Test

In the Nichols case, the court denied safeguarding the plaintiff’s characters on the ground that the characters of the Jewish man and his love interest, an Irish Catholic girl were prototypes and not “distinctly delineated. The judgment held that the less defined a character, the less copyrightability of the same. Under this approach, three important steps are to be followed:

  1. The character must have conceptual as well as physical traits.
  2. The traits should be consistent and identifiable
  3. The character must be unique and have distinguishable attributes.

Story Being Told Test

In Warner Bros. v. Columbia Broadcast Systems also known as the Sam Spade Test. The court decided that a character can only be protected by copyright if it “constitutes the story being told.” The character in question, Sam Spade from the Maltese Falcon detective novel, was held to be a “mere vehicle” for moving the plot forward in this case. As a result, copyright protection was not successful. This technique does not allow for copyright protection if the character is a “mere chessman in the game of storytelling,” as the ruling in the Warner Bros. case became known as the Sam Spade Test.

There have been several cases where the court took the help of both the tests in its analysis. The Anderson v Stallone was one such case. It was held that the character of Rocky portrayed by the actor Sylvester Stallone was a delineated one, as it had certain physical as well as personality traits which made it unique. Besides, the character of Rocky was also held to qualify the story being told test. Similar was the case with the character of James Bond, even though the character was portrayed by different actors the traits of the character remained consistent.

As of now, India doesn’t have distinct laws to safeguard the rights of fictional characters. Nonetheless, Section 13 of the Copyright Act, 1957 attends to the safeguarding of “original literary, dramatic, musical and artistic works; cinematograph films; and sound recordings.” The ambit of this section is extended to safeguard the copyrightability of fictional characters. Indian courts have delivered several judgments regarding the copyrightability of fictional characters. A few notable cases are V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd. and Star India Private Limited vs Leo Burnett. In both these cases, the Court has only looked at the copyright that exists on a fictional character, not the pre-requisite elements that must be met to use copyright laws to protect a character.

Trademarks and Fictional Characters

Owing to the wide ambit of a trademark under the Trademarks Act, it has become a possibility to have the personal and physical attributes of an imaginary person safeguarded under trademark law. This includes attributes like voice, image, signature, and catchphrases used by the character in the creative work. The first stage in treating renowned fictional characters or real-life people as trade indicators is character merchandising.

Character Merchandising and Personality Rights

In Star India Private Limited vs Leo Burnett, the High Court of Bombay observed: “Character merchandising involves the exploitation of fictional characters or the fame of celebrities by licensing such famous fictional characters to others. The fictional characters are generally drawings in which copyright subsists, e.g. cartoons and celebrities are living beings who are otherwise very famous in any particular field, e.g., film stars, sportsmen. It is necessary for character merchandising that the character to be merchandised must have gained some public recognition, that is, it must have achieved a form of an independent life and public recognition for itself, independently of the original product or independently of the milieu/area in which it appears. Only then can such a character be moved into the area of character merchandising. This presumes that the character has independently acquired such reputation as to be a commodity in its own right independently of the goods or services to which it is attached or the field/area in which it originally appears.”

The producer or the owner of the creation doesn’t have the sole right to exploit fictional characters who cannot be separated from the actors portraying them. In cases like these, fictional characters cannot be separated from the actors portraying them.

As per Section 29 of the Indian Trademark Act, 1999, the owner of a registered trademark can prevent any other part from using any similar symbol or mark on goods and services without his explicit consent. The owner or producer safeguards their rights with the help of this act and can give or sell the license to a third party for commercial gain. In case of infringement, the court grants civil as well as criminal remedies.

Fanfiction and fan art trace their origin from the fame of the characters from the original work. Fanfictions are fans’ way of expressing themselves and changing some aspect of the original story as per their wants, Often, the writer draws heavily from the main story and adds different plots. Characters and outcomes to make a new story. Some may write the story from a different perspective, a popular example of this is Harry Potter and the Half-Blood Prince from Ginny’s Perspective

Legality of Fanfiction

Fanfiction often fulfills the qualification of derivative work. The Supreme court discussed the definition of derivative work in the Eastern Book Company & Ors vs D.B. Modak & Anr, borrowing heavily from the US Copyright Law. He referred to it as “a contribution of original material to a pre-existing work so as to recast, transform or adapt the pre-existing work.” Most of the fanfiction works come under the category of derivative work, not transformative work. To be considered under the transformative work, the work most is completely origin though the creator can draw inspiration from an existing work. For instance, Dr. Bhupen Hazarika’s “Bistrinapore” was inspired by Paul Robson’s “Old Man River”. Similarly, Alice Randall’s work “The Wind Done Gone” was considered to be a transformative work, where she drew inspiration from Magret Mitchell’s “Gone with the Wind”.

The U.S. Copyright Act also specifies that the “fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Somewhat similar to the US’s ‘fair use doctrine, India has the ‘fair dealings’ doctrine mentioned under Section 52 in the Copyright Act, 1957. Its main purpose is to distinguish between legitimate work and obvious copying. In comparison to the US’s Copyright laws, Indian laws are restrictive, the list of exceptions is relatively narrow, so anything outside its scope is treated as an infringement

Points Fanfiction Writers Should Keep In Mind To Avoid Getting Into The Copyright Mess

Delhi High Court made a reference to the US Copyright law in the case of Chancellor Masters & Scholars vs Narendera Publishing House, to determine the critics for fair use of copyright.

The Purpose of Work

Fanfiction often non-commercial in nature symbolizes the popularity of the fandom. Works that are non for monetary gains and are personal or educational are categorized under fair use. Transformative work that changes the “expression, message, and meaning” of the original work is also considered to be fair use.

The Nature of Work

According to the principle of the modicum of creativity, safeguard is extended based on originality and innovative expression of the original creative work. Work based on unpublished work would be more difficult to safeguard. As of now, the court doesn’t have a fixed parameter to calculate the percentage of creative work that can be significant enough to claim infringement. Even though the more innovative and original the work is, the more are the chances of the court ruling in their favor.

How it Affects the Potential Market

As long as the popularity of fanfiction doesn’t have adverse effects on the popularity and commercial viability of the original, it can be said to be fair in use. However, if the fan work defames or creates a commercial dent for the original work, it may be deemed as an infringement of the original work.


India has evolved as a lucrative market for character merchandising. It helps in generating revenue. With such a vast market, the chances of copyright infringement and trademark violations have increased manifold. Fanfiction writers who want to express themselves can get themselves educated about the legal nitty-gritty of the nature of their work to keep themselves out of the copyright mess. From the above article, we conclude that there is no harm in writing fanfictions for non-commercial purposes. We must try to find ways for writers who want to profit from their work without harming the market prospects of the original work. For instance, fixing a certain percentage of profits as royalty given to the owner of the writer or artist makes money from fan art or fan fiction. We can try to come up with novel solutions to deal with many other issues regarding the legal safeguard of fictional characters, fanfiction, and fan art.

This article is authored by Tanisha Jha student at Institute of Law, Nirma University

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