During 17th and 18th centuries cartoons were evolved as a tool to express comments on social and political events. The word cartoon was derived from an Italian word "cartone", which mean a drawing or painting made on a paper or stained-glass projects. Cartoons were used as a mean to criticize social and public events in a humorous manner. In 1900's it evolved as animation. Walt Disney was the first to bring cartoons to mainstream entertainment.

Cartoons as a Fictional character can be protected by copyright, trademark as it becomes an icon and derivative of a creativity. Though these fictional characters cannot be protected under the patent law but the technicalities which are used to make the Fictional characters can be patented. The way Intellectual Property Rights protects fictional characters has shaped the interpretation of IPR laws and its application.

Copyright and Fictional Characters:

Copyright is a legal protection to the creators for their original expression of ideas. It provides an exclusive right to the creator to copy, adapt, distribute, perform and display for a stipulated period. Initially copyright was recognized only for literary works later the protection was extended to sound recordings, photographs, artistic works, software and architecture. Section 13 of the Indian Copyright Act, 1957 mentions that original literary, dramatic, musical and artistic works subsists copyrights. It also extends the protection to sound recording and cinematograph films. Protection of Fictional Characters was not recognized by Copyright Act, 1957, later it got its recognition from the judiciary.

Malayala Manorama vs. VT Thomas

This case was the first to bring focus upon copyright on fictional characters. V.T. Thomas is a cartoonist, he created character called "Boban and Molly" which is a famous cartoon characters in the state of Kerala. These characters are been published by Malayala Manorama. The conflict arose upon ownership of these cartoon characters. Later, Thomas resists his publication with Malayala Manorama and started publishing independently on the other hand, Malayala Manorama continues to publish these characters without the consent of the Thomas. The key issue of the case was who owns the copyright.

The court ruled in favor of V.T. Thomas, recognizing him as a sole owner of these characters "Boban and Molly". The act of continuance of publication by Malayala Manorama without the consent of the cartoonist amounts to copyright infringement. The moral and economic rights subsist with the cartoonist.

Raja Pocket Books vs. Radha Pocket Books

Raja Pocket Books is a renowned publishing house. Radha Pocket Books started publishing plots having similar traits, characters and title that was published by Raja Pocket Books. The key issues were whether Radha Pocket Books involved in copyright infringement and to what extent can a publisher claim copyright over characters and themes in fiction writing?

The court opined that Radha Pocket Books have involved in copyright infringement. The court clearly iterated that a fictional character which is original and distinctive, that are key element of the plots shall be protected under copyright. The court noted that while inspiration is common in creative fields, Radha Pocket Books had crossed the line from inspiration to copying substantial elements, such as character traits and plotlines, from the works published by Raja Pocket Books.

Components of Cartoon for Copyright Protection

• Distinctive Character: The main essential for copyright protection is that the work must be original and distinctive. The fictional characters must possess original and distinctive traits, including their shape and size. The Copyright Act extends its protection to original and distinctive visual and artistic works.
   
• Creative Expression: The story and plot of the fictional character must not be generic; rather, it must be unique. The features of the character must be distinctive, and it must have a specific expression. The Copyright Act protects specific expressions rather than general expressions.
   
• Music and Sound Effects: Music and sound effects can also be protected under copyright. The music composed and sound effects used for the character make the character distinctive and play a key role in identifying the fictional character, which plays an integral part in the overall production.
   
• Merchandising and Licensing Rights: Fictional characters are used as a tool to attract consumers for products like shirts, bottles, toys, etc. These merchandising efforts generate significant revenue in the market. Thus, the Copyright Act ensures that only the creators can grant licenses for these fictional characters.

Trademark and Fictional Characters

Fictional characters are used as a mechanism to sell a product in the market for pooling revenue. This strategy allows businesses to capitalize on the character's popularity and brand value. In India, fictional characters are considered as a mark when it is capable of representing the goods which can be potentially distinguish the goods from those of others. These fictional characters can be protected under the Trademark Act, 1999 if it meets the key components to consider it as trademark.

Disney Enterprises Inc. Vs. Jitendra Agarwal & Ors.

Disney Enterprises has possessed the intellectual property rights on the famous fictional characters like Mickey Mouse, Donald Duck, etc. These characters have gained a global recognition and is treated as a well-known trademark. Jitendra Agarwal has used these fictional characters to manufacture and sell counterfeiting goods like stationery, toys, apparel, etc. to attract customers and pool enormous revenue. Disney filed a suit against the defendant on the ground of trademark infringement and amounting to passing off, and for the financial loss occurred by using their fictional characters. The Delhi High Court ruled that the defendant have made a trademark infringement by using this fictional character in unauthorized manner and it amounts to passing off has it deceived consumers that these products belong to Disney.

Viacom 18 Media Pvt. Ltd Vs. Sanjay Kumar & Ors.

Chotta Bheem is one of the most popular fictional characters in India. Viacom 18 Media Pvt. Ltd possess the intellectual property rights over the cartoon series. The plaintiff owns the trademark on the fictional character and its name. The defendant has used the fictional character to manufacture, sell and distribute toys and stationery items to attract customers and leverage high revenue in the market.

This has caused confusion among the customers and damaged the reputation. The court ruled that the defendant has unauthorizedly used the fictional character which amounted to trademark infringement under Section 29 of the Trademark Act, 1999. The defendant's action amounts to passing off has it deceived the consumers that the products manufactured, sold and distributed belongs to the plaintiff, which results in damage of the reputation among the public. The court issued a permanent injunction restraining the defendant from unauthorized use of the fictional character.

Patent and Fictional Characters

Patent is used to protect the invention which meets the essentials like novelty, inventive steps and industrial applicability. Patent cannot protect the fictional characters rather it can protect the technology used to make the fictional characters. Disney and Warners Bros have claimed patent over the technology that is used to make such fictional characters. In the contemporary era, fictional characters which are embedded in the online games and the software or platform which possess an innovative technology can be patented. If a company has produced a robotic toy based upon the fictional character, these toys can be protected by patent.

Conclusion
Copyright, trademark and patent are three main pillars in intellectual property rights. The interface of the intellectual property rights and fictional characters is crucial and act as a savior in protecting the fictional characters in India, from unauthorized use and protecting its reputation among the public. It protects the innovation, creation behind the fictional characters and also impose restriction on commercial interests. Copyright and Trademark are the comprehensive and effective tool to safeguard these fictional characters and patent act as a supplementary legal mechanism.

Also Read:

• Intellectual Property Rights Over Fictional Characters