AN ANALYSIS ON THE PROTECTION OF LITERARY CHARACTERS UNDER

THE INTELLECTUAL PROPERTY RIGHTS AND THE SCOPE OF ‘DISTINCT

DELINEATION TEST’ IN INDIAN JURISDICTION.
 
 
INTELLECTUAL PROPERTY RIGHTS PROJECT

Submitted by 
 
 
Name: MAHALAKSHMI. G. S 
 
Reg. No: BA0200023 
 
 
Submitted to 
 
 
 

 
 

 
TAMIL NADU NATIONAL LAW UNIVERSITY 
(A State University established by Act No. 9 of 2012) 
Tiruchirappalli, Tamil Nadu – 620 009 
India 
 

 
 
AUGUST 2023

1
Mr. M. Mahindra Prabhu,  
Assistant Professor of Law 
Tamil Nadu National Law University 
Tiruchirappalli 
Tamil Nadu – 620 027 
 __________________________________________________________________________
 
CERTIFICATE 
 
This is to certify that the project work entitled “An Analysis on the Protection of Literary
Characters under the Intellectual Property Rights and the Scope of ‘Distinct Delineation Test
in Indian Jurisdiction” is a bonafide record of the research work done by Mahalakshmi. G. S,
under my supervision and guidance. It has not been submitted by any other University for the
award of any degree, diploma, associateship, fellowship or for any other similar recognition. 
 
Place: Tiruchirappalli 
Date: 23rd August 2023 
 
Signature of the Guide 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

2
Mahalakshmi. G. S  
Reg. No. BA0200023
III – B.A., LLB., (Hons.) 
Tamil Nadu National Law University 
Tiruchirappalli 
Tamil Nadu – 620 009 
 
 
 
DECLARATION 
 
I, Mahalakshmi. G. S (BA200023), hereby declare that this research article entitled “An
Analysis on the Protection of Literary Characters under the Intellectual Property Rights and
the Scope of ‘Distinct Delineation Test in Indian Jurisdiction” has been originally carried out
by me under the guidance and supervision of Mr. M. Mahindra Prabhu, Assistant Professor of
Law, TNNLU. This work has not been submitted either in whole or in part of any Degree/
Diploma at any university. 
 
Place: Tiruchirappalli 
Date: 23rd August 2023 
 
Counter Signed                                                                              Signature of the Candidate 
Project Guide                                                                                        Mahalakshmi. G. S
 
 
 

3
TABLE OF CONTENTS

1. TABLE OF CASES......................................................................................................4

2. ABSTRACT..................................................................................................................5

3. KEYWORDS................................................................................................................5

4. INTRODUCTION........................................................................................................5

1) REVIEW OF LITERATURE.........................................................................5

2) RESEARCH OBJECTIVES...........................................................................6

3) RESEARCH QUESTIONS.............................................................................6

4) RESEARCH METHODOLOGY...................................................................7

5. THE ROLE OF INDIAN IPR IN THE PROTECTION OF LITERARY

CHARACTERS............................................................................................................7

6. NAVIGATING THE CHALLENGES ASSOCIATED IN SAFEGUARDING

LITERARY CHARACTERS UNDER IPR.............................................................10

7. EFFICACY OF THE DISTINCT DELINEATION TEST IN INDIAN

JURISDICTION.........................................................................................................12

8. CONCLUSION & SUGGESTIONS.........................................................................13

9. BIBLIOGRAPHY......................................................................................................14

4
TABLE OF CASES

1. Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930)

2. Arbaaz Khan Production Pvt Ltd vs. NorthStar Entertainment Private Limited, (2016) 3
AIR Bom R 467.
3. V.T. Thomas v. Malayala Manorama Co. Ltd., 1987 SCC OnLine Ker 138
4. Star India Private Limited v. Leo Burnett (India) Private Limited, 2002 SCC OnLine Bom
942
5. Warner Bros. Pictures Inc. v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954)

ABSTRACT

The issue of Protection of Literary Characters under section 13 (a) of the copyright act, 1957
has been one of the most pivotal topics under discussion in the Intellectual Property Rights
due to the increase in character merchandising, along with the rise of new literary creators.
This research paper is important since it narrows down the concept of fictional characters that
have been solely described in writing (literary)’ to determine the infringement of copyrights
and the law administering it. Since the creative landscape is constantly evolving with new
forms of storytelling, digital media and other interactive platforms, research in this area can
address how the Indian IP laws adapt to these changes and whether the laws and the said test
is sufficient to adequately protect characters in modern contexts. In this paper, the author will
look into different cases that have been dealt by the Judicial bodies of India wherein the issue
of copyright protection of literary characters has been discussed and provide an analysis of
the ‘Distinct Delineation Test’ by identifying the scope and limitations of this test in India, to
understand the legal exposition of the IP Law administering the protection of literary
characters and the efficiency of the test in determining the literary characters.

KEYWORDS

Literary characters, Legal exposition, Distinct Delineation Test, Merchandising.

5
INTRODUCTION

1. REVIEW OF LITERATURE

1. Copyright Law and Justice in India by Upendra Baxi: The article provides a brief
introduction of the history and background of development of the copyright act in India and
the act per se, by explaining its scheme and general principles. It’s an overview that
incorporates analysis on amendments made to the act and how the act has changed over the
course of over 3 decades (1950s- 1980s) and then deeply delves into the copyright in literary,
dramatic, musical, and artistic works where he also discusses the landmark case Fortune
Films v. Dev Anand to explain the context of definition of ‘dramatic work’ extensively. This
part was irrelevant but the part where he deals with copyright in literary and dramatic works
under chapter IV (3) draws too much attention to defining the terms and more light has been
shed to dramatic works as compared to literary works that the title of the chapter suggests. He
has also explained other forms of art and the importance of protecting them. As a very
important work of him, I used the text to understand the importance of why copyright should
be granted to various arts works and, in this context, literary works and the role of law in
justifying it.

2. Online Fan fictions and Copyright: a Conundrum of Creativity and Infringement in

Digital Era by Shama Mahajan: The article provides insights into whether the Indian legal
framework is sufficient and pragmatic enough to provide protection to creativity of an
author’s work. Though he talks extensively about fan fiction, referring to fictional characters
in graphic and visual form, it is believed that this seemed like a relevant literature since it
talks about the challenges in protecting such characters under copyright and the element of
‘fairness’ in ensuring such protection in the present Indian background. The author has also
addressed the lack of progressiveness in the scope of this context, due to which it can be even
more challenging to ensure protection.

3. Copyrightability of Characters by Sourav Kanti De Biswas: The article extensively

deals with protection of characters- both graphic and physical. The author has delved deeper
into the platforms that increase the possibilities of copyright infringement of these characters,
especially owing to the rise of digital media. Special focus is made to the copyrightability of
characters under the Indian IP laws and the role of Judiciary in ensuring that it sets out

6
progressive and evolving principles to incorporate and address the complexities of modern-
day problems.
2. RESEARCH OBJECTIVES

1. To analyse whether literary characters need or need not be protected.

2. To identify whether the classification of characters is always possible.
3. To examine the efficacy of the ‘Distinct Delineation test’ in the Indian Jurisdiction.

3. RESEARCH QUESTIONS

1. Whether the India’s IPR law enlarged enough to encompass the protection of literary
characters?
2. Whether it is possible to always classify and differentiate a literary character?
3. Whether the distinct delineation test if efficient in the Indian Jurisdiction?

4. RESEARCH METHODOLOGY

The research will be addressed through a combination of legal analysis, precedents set forth
by the Indian Judiciary and literary theory (to understand how the US have incorporated these
laws in their IPR), relevant copyright laws to understand whether the legal background for
such protection sufficient and the comparative case studies to provide insights into how the
test mentioned ‘test of distinct delineation’ is applied in the courts of India as opposed to US.
Journal articles by various legal scholars and other authors to provide a comprehensive
understanding and challenges associated with the protection of literary characters under IPR.

THE ROLE OF INDIAN IPR IN THE PROTECTION OF LITERARY

CHARACTERS

In the scenario of current Intellectual Property protection, what can or cannot be protected
under the IP law has evolved to a greater extent. 1 And, literary work created by an author in
the textual form is entitled to protection under the copyright for the purposes of Intellectual
Property.2 There has been an increase in the entertainment industry where numerous

1
Protection of Computer Programmes in India, (1988) 2 SCC J-1
2
Online Fan fictions and Copyright : a Conundrum of Creativity and Infringement in Digital Era, 5 JIPL (2020)
69

7
characters be it fictional and non-fictional, have gained increased merchandising and similar
character based commercial ventures that have increased major businesses but at the same
time, the misappropriation of these characters.3 In the realm of Indian IP laws, Section 13 (a)
of the Copyright Act, 1957 provides for the protection of the original literary works. 4 With
the increase of misappropriation of the characters for numerous purposes, there is an
expedited necessary to extend the scope of the literary characters and provide protection to
ensure that the rights of the author is not infringed.5 Copyright protection is provided to
characters that have been solely described in writing or to characters that are presented in a
visual or graphic form. And the important requisite to extend protection to these characters
under the copyright law is that the character should carry or possess with it a set of original or
a set of distinctive traits, and since these are literary characters, visual representation is not
required6 or is taken into consideration. It is quite conspicuous that the copyright protection is
granted to those who create original literary, artistic work which may be protected as
‘dramatic works’ or ‘performer rights.7 However, there are certain complications in granting
such protection since the literary characters do not essentially carry fresh attributes8 to the
character.

Creators and authors hold a significant cultural, artistic, and social value and the idea of
protecting these literary characters revolves around preserving the values involved in the
creative process. To ensure authorial controls that empower the use and adaptation of their
creations, copyright protection prevents and prohibits the unauthorized use of characters in
ways that may distort the original intent, misrepresent the character, or exploit them for
financial gain without the author’s consent.9 And when the characters are used for
commercial purposes, authors deserve a fair compensation for the value their creations bring.

3
“The Protection Afforded Literary and Cartoon Characters Through Trademark, Unfair Competition, and
Copyright.” Harvard Law Review 68, no. 2 (1954): 349–63. https://doi.org/10.2307/1337351.
4
Copyright Act, 1957, § 13 (a), No.14, Acts of Parliament, 01st Jan 1958(India).
5
Dora, P. (2023) Judicial trend of copyright protection for character merchandising in India, asialaw.
Available at: https://www.asialaw.com/NewsAndAnalysis/judicial-trend-of-copyright-protection-for-
character-merchandising-in-india/Index/1666 (Accessed: 28 August 2023).
6
Amanda Schreyer, 'An Overview Of Legal Protection For Fictional Characters', 6 CYBARIS IP L. Rev. Vol.
51 (2015) available at http://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1043&context=cybaris
7
Joseph, Lian Cicily. "ELEMENTARY-COPYRIGHT PROTECTION AND DERIVATIVE LITERARY
CHARACTERS." INTELLECTUALIS (2018): 10.
8
Protection of Computer Programmes in India, (1988) 2 SCC J-1
9
Baxi, Upendra. “COPYRIGHT LAW AND JUSTICE IN INDIA.” Journal of the Indian Law Institute 28, no.
4 (1986): 497–540. http://www.jstor.org/stable/43951048.
Protection of Computer Programmes in India, (1988) 2 SCC J-1

8
And protection under copyrights ensures that the authors have the legal grounds to negotiate
fair deals and receive royalties for any derivative works or adaptations.10

In one of the earlier cases- V. T. Thomas & Ors., v. Malayala Manorama Co. Ltd., 11 the
respondent was a well-established publishing house. The plaintiff, V. T. Thomas had created
two characters- Boban and Molly which were being routinely published by the respondents
even after the plaintiff had reportedly terminated his employment from the publishing house.
Though he had terminated his employment, he had continued to make cartoons based on
these characters and they were also being published by his new employer and the rival
publishing house- Kala Kaumudi. In response to this, Malayala Manorama Co. Ltd., had filed
a suit for copyright infringement against the plaintiff and Kala Kaumudi. Though only the
issues of ownership of characters were extensively dealt in reference to section 17 of the
copyright act12, the court had settled that the plaintiff and the respondents’ relationship
changed from time to time, but the plaintiff had created the characters Boban and Molly even
before being employed by the either of the publishing houses. So the courts settled on the
decision and concluded that the ownership of the characters lies with the plaintiff and only he
can have extensive and exclusive control over the characters. The court had relied on the
landmark test13 laid down by the case Nichols v. Universal Pictures,14 where protection of
copyright to characters could be granted, given they have attributes and traits that are unique
enough to distinguish from other already existing characters. It was in this case the High
court of Kerala had elaborated on the ownership of the characters and not the
‘copyrightability,’ per se but this was the earliest case in Indian jurisprudence that discussed
concepts pertaining to character copyright, keeping in line with the larger objectives of IPR.

In cases Star India Pvt. Ltd. v. Leo Burnett 15 and Arzaab Khan Production pvt. Ltd. v.
Northstar Entertainment Pvt Ltd.16, the questions of copyrightability of characters and
character merchandising were dealt. In the former case, the plaintiffs produced a television
serial called “kyun ki saas bhi kabhi bahu thi”, around June 2000 and the respondents had
10
Dora, P. (2023) Judicial trend of copyright protection for character merchandising in India, asialaw.
Available at: https://www.asialaw.com/NewsAndAnalysis/judicial-trend-of-copyright-protection-for-
character-merchandising-in-india/Index/1666 (Accessed: 28 August 2023).

11
V.T. Thomas v. Malayala Manorama Co. Ltd., 1987 SCC OnLine Ker 138
12
Copyright Act, 1957, § 17, No.14, Acts of Parliament, 01st Jan 1958(India).
13
The test had been extracted from the landmark case Nichols Vs Universal Pictures, i.e, Distinctly delineated
test’ that determines the originality of the literary character.
14
Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930)
15
Star India Private Limited v. Leo Burnett (India) Private Limited, 2002 SCC OnLine Bom 942
16
Arbaaz Khan Production Pvt Ltd vs. NorthStar Entertainment Private Limited, (2016) 3 AIR Bom R 467.

9
released a commercial on February 2002 for Tide- a detergent company titled “kyun ki bahi
bhi kabhi saas banegi”, that portrayed a character of the plaintiff’s television serial. In this
case, when the copyrightability of characters was put forth, the test of public recognition was
highlighted, wherein the Hon’ble court stated that “The characters to be merchandised
must have gained some public recognition, that is, 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”.17

In the other case law, the defendant had copied a character from the movie franchise
“Dabangg” movie to create other movie “Chulbul Pandey”.18 When an injunction suit was
filed against the defendants, they had claimed that a certain police officer in the plaintiff’s
movie was ‘fearless and corrupt’ but their character was ‘fearless and honest’. Hon’ble court
refused the plea for injunction and stated that “But as to the general principle that the
character is unique and the portrayal of that character, as also the “writing up” of that
character in an underlying literary work is capable of protection is something that I think I
can safely accept. It would be, I think, stretching it too far to say that such a fully developed
and uniquely depicted character because it is ‘merely a character’, falls wholly outside the
realm of all protection.”19

Based on the understanding provided above on the basis of the landmark cases set by the
Indian Judiciary it can be observed that there is an absence in the yardstick to measure or
identify infringement of copyrights of characters since a literary character is much more than
just unique name and traits and thus summarising the Indian legal framework of IP protection
granted to characters created by authors. There are cases where a first series of work is
created by one author while the other series pertaining to the same characters such as Enola
Holmes from the infamous Sherlock Holmes originally written by Dir. Arthur Conan Doyle 20
or even Ian Fleming’s James Bond was done but the Indian legal framework refuses to deal
with such situations.21

17
Star India Private Limited v. Leo Burnett (India) Private Limited, 2002 SCC OnLine Bom 942
18
Indo Asian News Service (2020) Salman Khan’s Dabangg gets an animated series, Hindustan Times.
Available at: https://www.hindustantimes.com/bollywood/salman-khan-s-dabangg-gets-an-animated-
series/story-yOlyPj065xdaIEfOS7vOML.html (Accessed: 28 August 2023).
19
Arbaaz Khan Production Pvt Ltd vs. NorthStar Entertainment Private Limited, (2016) 3 AIR Bom R 467.
20
Joseph, L.C., 2018. ELEMENTARY-COPYRIGHT PROTECTION AND DERIVATIVE LITERARY
CHARACTERS. INTELLECTUALIS, p.10.
21
Biswas, S.K.D. (2004) Copyrightability of characters, Journal of Intellectual Property Rights. Available
at: http://docs.manupatra.in/newsline/articles/Upload/6E98AFD8-25C9-441B-B663-0866D80E1064.pdf
(Accessed: 28 August 2023).

10
NAVIGATING THE CHALLENGES ASSOCIATED IN SAFEGUARDING
LITERARY CHARACTERS UNDER IPR

Whether literary work has to be entitled to protection IP laws in itself is an uncertain question
while considering that if such a character is protected, it cannot be used in the storyline in
itself. As explained by David B Feldman, “A fictional Character has three identifiable and
legally significant components: its name, its physical attributes and its personality traits or
characterization”22 As a universally challenge, what constitutes a character that it is entitled to
protection under IP law has to be done through a standard.23

In the landmark case law Nichols v. Universal Pictures,24 when the test to determine the
copyright-able characters came up, the course of IP law administering the copyrightability of
characters changed. Nichols was the author of Abie’s Irish Rose and the defendant had
produced a film based on the character of her play, for which she had sued the defendant. The
judge, in his opinion stated that the protection of literature cannot be restricted to the precise
language since if it were, an infringer may get away with copying by making insignificant
adjustments. The next consideration is how “substantial” the part taken was. He said that
although it is difficult to make a clear distinction between work and ideas, “her copyright did
not cover everything that might be drawn from her play; its content went to some extent into
the public domain”. Since the plagiarized ideas are essentially stock characters and general
notions, there was no infringement in this case.25 This case set forth the challenges involved
in interpreting the characters created by the author while also providing yardsticks such as the
‘distinct delineation test’ to determine whether the literary character needs to be protected,
upon classification.

In the landmark case Star India Pvt. Ltd. v. Leo Burnett the court observed that “reference is
made to Copinger and Skone James on Copyright, Thirteenth Edition, at paragraph 3.29,
some portions of which may be reproduced ..............it has been stated that skill, labour and
judgment merely in the process of copying cannot confer originality and the mere copyist
cannot have protection of his copy, particularly, therefore, where the reproduction is in the
same medium as the original, there must be more than an exact reproduction to secure

22
Feldman, David B.. “Finding a Home for Fictional Characters: A Proposal for Change in Copyright
Protection.” California Law Review 78 (1990): 687.
23
A Quest for Home of Fictional Characters: A Validation for Change in Copyright Protection, II JCLC (2014)
147
24
Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930)
25
Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930)

11
copyright; there must be some element of material alteration or embellishment which suffices
to make the totality of the work an original work. If the original, in the case of a painting, is
used merely as a model to give the idea of the new work or, in the case of a photograph,
merely as a basis to be worked up by photographic process to something different, then the
new work may be entitled to protection; but, if the result is simply a slavish copy, it will not
be “protected.”26

Because Literary characters have a “tangible existence only in the specific words, pictures
and sounds created by (their) author,”27 they are particularly challenging to be protected.
These descriptions help each reader to create a unique mental picture of the character and
different readers create their own interpretations based on what the author has created
wherein they fill blanks and draw conclusions based on their own understanding of the
author’s idea. And since no two minds will conceptualize exactly the same way, it becomes
impossible to define or understand a literary character as it was explained by the author.28

It is more challenging to decide whether a literary character is separately entitled to copyright

protection than to decide whether a literary work as a whole should be offered such
protection. While neither of them is simple, the entirety of the literary work has to be taken
into consideration and then divide them into beginning, middle and end and then see if they
are comparable with any other literary works.29 Moreover, the characters’ descriptions are
spread across the book and as story progresses, the character evolves along with its traits and
personality, which is why it is so challenging to specify precisely what is entitled to copyright
protection when comparing two characters to decide and determine if one substantially
infringes the rights of the other. And it is also challenging to compare a character with one
that may be infringing when that character is unclearly defined or constrained.

26
Star India Private Limited v. Leo Burnett (India) Private Limited, 2002 SCC OnLine Bom 942
27
Leslie A. Kurtz, The IndependentLegal Lives ofFictionalCharacters,1986 Wis. L. REV. 429, 430 (1986).
28
Jasmina Zecevic, Distinctly Delineated Fictional Characters That Constitute The Story Being Told: Who Are
They And Do They Deserve Independent Copyright Protection?, 8 Vanderbilt Journal of Entertainment and
Technology Law 365 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol8/iss2/4
29
Jasmina Zecevic, Distinctly Delineated Fictional Characters That Constitute The Story Being Told: Who Are
They And Do They Deserve Independent Copyright Protection?, 8 Vanderbilt Journal of Entertainment and
Technology Law 365 (2020)
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol8/iss2/4

12
EFFICACY OF THE DISTINCT DELINEATION TEST IN INDIAN JURISDICTION.

In the landmark case of Nichols Vs Universal Pictures30, dealt by the United States Court of
appeals for the second Circuit, the Hon’ble Court set a test- Distinctly delineated test’ and in
the other landmark case Warner Bros. Pictures Inc. v. Columbia Broad. Sys.,31 put forth
another test that has been referred as ‘story being told test.’ And the research paper tries to
incorporate the ‘distinctly delineated test’ as a significant criterion that determines the extent
of character protection in the context of copyright infringement. The distinct delineation test
tries to assess whether a character is sufficiently distinct and developed in a manner that can
be granted legal protection by taking into various considerations such as character traits,
backstory, and unique attributes. However, the issue pertains to how efficient this test is, as
the creative landscape evolved and complexity of narration deepens, especially in the Indian
context. It questions the adequacy and adaptability of this test in addressing contemporary
challenges related to character protection.

The only Indian case that introduced the protection of character was V. T. Thomas & Ors., v.
Malayala Manorama Co. Ltd.,32 where the court made an oblique distinction between
cartoon character-based drawings and cartoon characters used alone. Although the court did
not go into specifics to establish the conditions under which a character can be eligible for
legal protection, it is inferred that characters can have copyrights over them. As previously
stated, even though the court was not explicitly giving the characters of "Boban and Molly"
copyright protection, if the Nichols test33 had been applied in the given situation, the
characters might have received copyright protection. The characters were incredibly well-
known and left a lasting impression on the readers and it was acknowledged that the author's
cartoons' popularity was mostly attributed to the characters' distinctive traits and
personalities. Given these facts, it can be argued that "Boban and Molly's" personalities were
sufficiently defined to merit legal protection under the concept of copyright.

The US courts addresses the issue of a character's copyright protection before conducting an
infringement analysis. Although the Indian Copyright Act, 1957 helps producers and
copyright owners in some ways, it is insufficient to provide character protection concretely. 34

30
Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930)
31
Warner Bros. Pictures Inc. v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954)
32
V.T. Thomas v. Malayala Manorama Co. Ltd., 1987 SCC OnLine Ker 138
33
‘Distinctly delineated test,’ Nichols Vs Universal Pictures, 45 F.2d 119 (2d Cir. 1930).
34
“The Protection Afforded Literary and Cartoon Characters Through Trademark, Unfair Competition, and
Copyright.” Harvard Law Review 68, no. 2 (1954): 349–63. https://doi.org/10.2307/1337351.

13
The Indian courts adopt an abstract understanding of idea and expression, failing to consider
whether a character merits copyright protection before analysing whether an infringement has
occurred.35 It is advised that the Indian court take the US court's strategy into consideration in
order to better safeguard authors who commercially exploit their works. In order to simplify
the pattern for protection in case of infringement in connection to protection of literary
characters and the copyrightability of them, tests like the character delineation test and story
being communicated should be established in India.

CONCLUSION & SUGGESTIONS

The implementation of the Berne Convention for the protection of literary and Artistic Works
under article 8 of the Berne Convention provides that “Artists of literary and artistic works…
shall enjoy the exclusive right of making and of authorising the translation of their works
throughout the term of protection of their rights in original works.”.36 As per the International
IP Index, it ranks 43 out of the 55 countries, which denotes that India is in a dire need to
strengthen its IP laws. The narrative around IPR is quite complex and the lack of effective IP
laws has led to instances of content theft and copyright infringements.37 The research paper
has extensively dealt with the law administering the protection of literary characters under the
Indian IP law including the Copyright act, 1957 and the landmark cases where the scope of
‘protection of characters’ have been discussed, though not pertaining to just literary
characters but fictional, graphic and visual forms in general. The research paper has also
provided an analysis on the challenges poised towards determination of differences and
classification of characters when there is a need to copyright protection, along with how the
lack of strong foundational legal framework is insufficient to evolving problems in this
context. The research concludes with explaining the distinct delineation test put forth by the
landmark case Nichols Vs Universal Pictures and its inefficiency in Indian jurisdiction due to
lack of structured protection.

BIBLIOGRAPHY

35
Protection of fictional characters in IPR, 2.3 JCLJ (2022) 659
36
Berne Convention for the Protection of Literary and Artistic Works, 9-9-1886, as revised by Paris on 24-7-
1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986), (Accessed 28-08-2023)
<http://www.wipo.int/treaties/en/text.jsp?file_id=283698>.
37
Khimani, P. (2022) India needs stronger copyright and IP Laws, Hindustan Times. Available at:
https://www.hindustantimes.com/ht-insight/economy/india-needs-stronger-copyright-and-ip-laws-
101660202940185.html (Accessed: 28 August 2023).

14
Primary Sources

1. Copyright Act, 1957, No.14, Acts of Parliament, 01st Jan 1958 (India).
2. Berne Convention for the Protection of Literary and Artistic Works, 9-9-1886,

Secondary Sources

1. Protection of Computer Programmes in India, (1988) 2 SCC J-1

2. Online Fan fictions and Copyright : a Conundrum of Creativity and Infringement in
Digital Era, 5 JIPL (2020) 69
3. Joseph, Lian Cicily. "ELEMENTARY-COPYRIGHT PROTECTION AND
DERIVATIVE LITERARY CHARACTERS." INTELLECTUALIS (2018): 10.
4. Protection of Computer Programmes in India, (1988) 2 SCC J-1
5. Biswas, S.K.D. (2004) Copyrightability of characters, Journal of Intellectual Property
Rights. Available at: http://docs.manupatra.in/newsline/articles/Upload/6E98AFD8-
25C9-441B-B663-0866D80E1064.pdf (Accessed: 28 August 2023).
6. Feldman, David B.. “Finding a Home for Fictional Characters: A Proposal for Change in
Copyright Protection.” California Law Review 78 (1990): 687.
7. A Quest for Home of Fictional Characters: A Validation for Change in Copyright
Protection, II JCLC (2014) 147
8. Leslie A. Kurtz, The Independent Legal Lives ofFictionalCharacters,1986 Wis. L. REV.
429, 430 (1986).
9. Protection of fictional characters in IPR, 2.3 JCLJ (2022) 659

Webliography

1. “The Protection Afforded Literary and Cartoon Characters Through Trademark, Unfair
Competition, and Copyright.” Harvard Law Review 68, no. 2 (1954): 349–63.
https://doi.org/10.2307/1337351.
2. Dora, P. (2023) Judicial trend of copyright protection for character merchandising in
India, asialaw. Available at: https://www.asialaw.com/NewsAndAnalysis/judicial-trend-
of-copyright-protection-for-character-merchandising-in-india/Index/1666 (Accessed: 28
August 2023).

15
3. Amanda Schreyer, 'An Overview Of Legal Protection For Fictional Characters', 6
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