Work Of Fiction: Idea Or Expression?

• Published date: 03 August 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Khurana and Khurana
• Author: Richa Bhandari

Ironman, Batman, Tarzan, Mickey Mouse, James Bond, Harry Potter are not merely names but are "cultural heuristics," with the power to transport, amaze, horrify, and inspire. All of us, on a daily basis, delve into their stories and associate with them on a personal level, even get inspired by them sometimes. Characters may be described as the very essence of work and are irreplaceable to such an extent that the work loses its plot and all that remains is the mere "idea". A classic example of this may be that of Captain America from Marvel's Avengers or the character of Salman Khan in Dabbang, which are literally the Superheroes of Copyright!

Fictional characters or the "works of fiction" as one may call them; have the ability to attach themselves to the lives of readers in a manner that engages them both emotionally and mentally, perhaps as a result of narrative techniques that invite readers into the inner lives of characters. In the words of Suzanne Keen, "even though readers know perfectly well that fictional characters are make-believe, they go on caring about them, lending them the bodies that they do not possess, feeling with them in an emotional fusion that paradoxically calls into embodiment a psychic corporeality vouched for in readers' own bodily responses."

Now the question which arises is, when such characters form the very essence of a work, that is when they are so fundamental to the experience of engagement, why is there a reluctance to grant them the protection they need? The reluctance to extend copyright protection to fictional characters stems from their dichotomic nature. The reason being that, as per the conventional idea of a "copyright", which basically confers such exclusive right only when the literary work is not a mere idea but, is reduced in a manner that it can be called an "expression of the idea", fictional characters are merely ideas in the mind of the author.

A core principle of copyright protection is that it grants authors and creators exclusive rights to their works, but not to ideas, procedures, methods of operation, or mathematical concepts. This dichotomic nature of the characters is due to the infamous tussle between idea and expression, also referred to as the Idea-Expression Dichotomy, which restricts the protection of every element of the characters such as its name or any catchphrase but extends to only such works that are actually developed in a material form. The law is stringent upon the principle which...