Copyright: to what extent can fictional characters be copyrighted?

  • By:Tim Slingschröder
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After spending months in a row drawing on his attic room, an artist has finally finished what he believes is the greatest comic book ever made. Worried about other people intending to copy this masterpiece, the artist rushes to the nearest law firm to ask how he can legally protect his work.

If the law firm in question is any good, its legal experts will advise the creator to file an Application for Copyright registration over the book. Our concerned creator immediately agrees to do so, but upon coming home he wonders if the ingenious characters in his comic will also enjoy legal protection under the registered Copyright.

The protection of characters through a Copyright vested on the book they appear in

According to Article 1 of Law 28/2014 about Copyrights, the range of subjects over which one can hold a Copyright is a wide one. Any ‘scientific, literary and artistic Work resulting in inspiration, ability, thought, imagination, skill or expertise’ is basically protected through a Copyright – as long as the Work in the case is tangible.

This means study books and maps are eligible for Copyrighting, but also more artistic Works such as comics and its individual characters are. Comic books are a great example as they contain detailed representations of the persons in it; unlike novels, comics visually depict their characters, defining them a lot better than mere descriptions could do.

Legal protection of individual characters from films or books proofs to be notoriously difficult in Indonesia. In a famous 2014 case, a large Indonesian film studio was sued for using a character that has been famous among Indonesian children since the 1980s.

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Though obviously entire previously made storylines could not completely be copied, for long the copying of the character by itself was allowed before public pressure finally caused the film studio to reach an agreement with the character’s creator. The case has even led to the current possibility to have individual characters from films and (comic) books Copyrighted, which was virtually impossible prior to 2014.

Now that the opinion of judges and the Indonesian Directorate General of Intellectual Property appears to have been shifted towards more protection for individual characters, such characters can be regarded as legally important key elements of Works like comic books. Holding a registered Copyright on a certain Work does offer exclusive rights to its main features, but the smaller the role is certain subjects play in the Work as a whole, the lower the protection level of such subjects is.

Parties copying side characters or buildings which barely play a serious role in the comic book will most likely not be found guilty of Copyright infringement. The same goes for abstract features such as storylines. Anyone can draw a story about someone being bitten by an animal and getting superpowers. But once that new hero starts shooting spiderwebs out of his hands and crawling up against the walls of tall skyscrapers, Marvel’s lawyers might sue the artist for infringing Spiderman’s Copyright.

Copyrighting historical figures or celebrities

Our artist’s new comic could be about a self-created superhero with a personality, quotes and characteristics entirely coming from the creator’s fantasy. But what if the main person is a historical figure like Napoleon Bonaparte or Julius Caesar – or even a living celebrity? As far as the first category goes, Article 12 of the Copyright Law does state that prior permission is needed from the heirs of deceased people before they can be used as characters in works of art. This makes a comic about Indonesia’s national hero Sukarno (who passed away in 1970) far riskier in a legal sense than a story about Julius Caesar, who was killed two millennia ago and obviously has no living close heirs. Besides Sukarno’s death being relatively close to the present, there is another reason why fictional stories about him may not be in line with the Copyright Law.

Article 43 mentions presidents and national heroes as being symbols of the Indonesian state, over who no one can claim exclusive Copyrights. In addition to the restrictions as set in the Copyright Law, imaginary stories about certain important figures in recent history and religion easily cause controversy – which may not be the kind of publicity one wants for his newly planned comic book.

In case of historical figures, an artist should ask permission to their closest heirs before incorporating them into something like a comic book. With contemporary, living celebrities, the person one needs this permission from is the celebrity him- or herself. This is stated in the same Article 12 of the Copyright Law as the one that arranges the requirements for Copyrighting historical figures as described in the previous subparagraph.

Whether it be dead or living famous figures, as long as permission is being granted by the relevant parties one is free to create his own image of the person in question. This is of course not the case for paintings, descriptions or other representations of the historical figure or celebrity which have previously been made by other creators – as those other creators hold the Copyrights over these. To get back to Julius Caesar; one can perfectly sketch his own image of him, but once someone copies someone else’s drawing of Caesar and uses this in a book he can find himself in legal trouble.

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