Character Merchandising Under Copyright Law

Though the fictional characters assume a well-pervasive place in reader’s minds and lives, they still do not enjoy clear legal protection against their infringement. Fictional characters, being variable and elusive, do not get any protection under the copyright law, independently from the work in which they appear. The question of independent protection of characters arises when a character is taken from the original work and leads new and independent life in new literary piece of work. This chapter discusses different kinds of tests introduced by courts to determine when a character can be considered to be copyrightable viz., ‘the Intrinsic test’, ‘the Story Being Told test’, ‘the Character Delineation test’ etc. This chapter critically evaluates that variance in the protection of literary and graphical characters lies because of the form in which they exist, graphical characters are characterized through some physical representation while the literary characters are envisioned by the reader with the help of description that is offered to him by the author. This chapter also looks at the obscure distinction between literary characters and visual characters in order to establish their copyrightability.