INTRODUCTION
The cartoon characters we see on television, such as Shin Chan, Doreman, Dora, Chotta Bheem, Jackie Chan, Heidi, etc., and other fictional characters, such as Sherlock Holmes, Spiderman, Batman, etc., are usually remarked as graphical characters. These graphic characters are characterized either as cartoons or as other graphic forms. The flexibility of the usage of such cartoons and graphic forms from one medium to another led to the dimension of vulnerability and exploitation of such characters. This is because, if any cartoon is found trending and popular, then such cartoons will be commercialized in many inappropriate and unauthorized mediums such as in video gaming platforms, conjoined with products and services such as T-shirts, mostly in children using toys, tiffin boxes, school bags, lunch bags, stationeries etc., Thus the requirement and mandate of protecting the exclusive rights of creators of such graphic forms, and cartoons arises.
If we enquire into the framework which protects the exclusive rights of cartoon characters, there is no analogous explicit framework. Because the definition of artistic work does not include graphic cartoon characters. As the term artistic work only includes a painting, a sculpture, a drawing (including a diagram, map, chart, or plan) a photograph such as architecture[1]. Additionally, the IP rights can only be exercised over the visual traits of the characters and not the intellectual and emotional personality. However, Indian laws and courts extend their helping hand to creators to protect their creations and copyrights [2].
The ownership of the cartoons rests with the creators, and the only exception to this is the creation of such characters in the due course of employment or under contract or agreement. The three-part test was established to determine the copyrightability of a character in D.C Comics v. Towle case[3]. The three elements of the tests are physical and conceptual qualities, sufficient recognition of the character, novelty, and distinctive and unique elements of the characters.
The Copyright Act of 1957 does not explicitly protect the cartoon characters, whereas the Trademarks Act of 1999 protects the cartoon’s character, its uniqueness, and its likeliness. Section 2 of the Trademarks Act protects the cartoon logos and their themes.
CASE STUDY
- V.T. Thomas Alias Toms & Others vs. Malayala Manorama Company[4]
Facts: Thomas was employed in Malayala Manorama Co. Ltd., and he created a cartoon series known as Boban and Molly even before entering into employment, which was published in the respondent’s publishing house. Thomas continued to generate the series even after he left the publishing house.
Issues: Thomas is entitled to use the cartoon characters even after the termination of employment.
Held: The Hon’ble High Court of Kerala, after analysing the case, opined that Thomas had created those characters even before the employment, and thus he has the right to use the same after the termination.
- Raja Pocket Books v. Radha Pocket Books[5]
Facts: The plaintiff created a comics series titled “NAGARAJ” as he was involved in the business of publishing books and comic series. The plaintiff alleged that the defendant had infringed and created a new series named “NAGESH” similar to NAGARAJ. The plaintiff sought a temporary injunction.
Issues: Whether the actions of the defendant amounted to infringement of the plaintiff’s copyright and whether the plaintiff is entitled to a temporary injunction.
Held: The Hon’ble High Court of Delhi held that the plaintiff is entitled to a temporary injunction against the publication of NAGESH. The court opined that no comic series cannot resemble any existing work.
- Disney Enterprises Inc. & Anr v. Santhosh Kumar & Anr[6]
Facts: The plaintiff found that the defendant is selling stationery items resembling the characters whose exclusive rights vest with the plaintiff. The plaintiff sought a permanent injunction as the activities of the defendant were unauthorized under Section 51 of the Copyright Act, 1957.
Issue: Whether the plaintiff is entitled to claim a permanent injunction?
Held: The Hon’ble High Court of Delhi held that the plaintiff has intense reference and substantiveness with his materials and things, which can be enjoyed only by the plaintiff. The court issued a permanent injunction to the defendant from the sale of such products.
- Disney Enterprises Inc v. Gurucharan Batra & Ors[7]
In this case, the defendants were selling counterfeit school bags in the names of Mickey Mouse, Minnie, and Goofy, which the Delhi High Court injuncted.
The above-mentioned cases are some references to how the exclusive rights over the cartoon characters are protected despite the lacunae in the legislation. Further the registration of copyright and trademark because of its enforceability as evidence for proving one’s creation.[8]
Let’s have a look at the international mechanisms for protecting these fictional characters. The U.S. copyright law has specific provisions for the protection of fictional characters through the evolution of case laws. These case laws have created various tests for determining copyrightability. They are the sufficiently delineated test, the story behind the told test and the three-part test. The French courts are also attempting to address this issue described in the physical appearance. The Italian court already clarified this issue and provided indications for the protection of such fictional characters. The European Union establishes the combined mechanism of copyright and trademark to protect cartoon characters.
CONCLUSION
In conclusion, copyrights and trademarks somehow play a vital role in contemporary commercialization and IPR landscape. These legal instruments serve as invaluable assets by offering protection against infringement, fostering brand awareness, and ensuring product distinctiveness. The matter of concern also requires further awareness not only in the Indian IPR regime but also in the global IPR regime.
Here are some recommendations for protecting the cartoons under the Intellectual Property regime:
- The global IPR regime should establish any static and dimensional mechanism to protect the cartoon characters.
- The contemporary tests must be up-to-date and efficient to protect the cartoons.
- These emerging legal issues require the attention of legislation, policymakers, jurists and the judges crafting judgments of these cases.
- The state should establish mechanisms such as copyright registration, trademark registration, trade secret registration, etc.
Author(s) Name: Srimathi S (Chennai Dr. Ambedkar Government Law College, Pudupakkam)
Reference(s):
[1] Priya Rao, ‘Protection Of Cartoon Characters In India Livelaw’ ( Livelaw, 4 June 2021) <https://www.livelaw.in/law-firms/articles/law-firmsarticlesprotection-of-cartoon-characters-in-india-175144-175253#_ftn3> accessed 10 July 2024
[2] Copyright Act 1937, s 2(c)
[3] DC Comics vs. Towle [2015] 802 F.3d 1012 (9th Cir. 2015)
[4] V.T. Thomas Alias Toms & Others vs. Malayala Manorama Company [1989] AIR KER 49
[5] Raja Pocket Books vs. Radha Pocket Books, [1997] (40) DRJ 791
[6] Disney Enterprises Inc. & Anr. vs. Santosh Kumar & Anr. [2011] CS(OS) 3032/2011
[7] Disney Enterprises Inc & Anr vs. Gurcharan Batra & Ors [2006] (C.S.(OS) No.607/2006)
[8] Valentine Labaume, ‘The protection of fictional characters under EU intellectual property law’, (2021) 4 STOCKHOLM INTELLECTUAL REVIEW.
