News & Cues: Unlicensed use of Shikari Shambu

by Koka Tarini Siddhartha 

A copyright lawyer will always advise their clients with two simple instructions: (1) if it doesn’t belong to you, get a licence (or an assignment); (2) make sure you get it in writing. The following is a case where neither happened, subsequently leading to some film producers finding themselves entangled in legal battle.

Shikari Shambu pays a visit to the Bombay High Court:

Shikari Shambu is an Indian comic character created for Amar Chitra Katha’s (ACK) extremely loved and popular magazine, Tinkle. This graphic character is distinctive and widely known as the lazy, cowardly, and bumbling hunter, whom the world sees as a heroic hunter thanks to his sheer luck.

Earlier this week, ACK, the copyright owner of the character, moved the Bombay High Court against the film producers of a Malayalam film, Shikkari Shambu, claiming copyright infringement and objected to the release of the film. ACK who was made aware of the infringing film in October 2017, issued a cease and desist notice against the film producers, and in return, received a request from the producers for a license to use the character.

Despite the discussions and negotiations which followed thereafter, the producers who had assured ACK that the film would be released only after February 2018, presented ACK with the unpleasant surprise of releasing the film on January 20, 2018. Even Justice S.J. Kathawalla, who is on the bench for this case, pointed out the incredulity in obtaining a censorship certificate before negotiating a licence.

How exactly does IP law apply here?

Well, there are different angles to the protection of graphic characters. Generally, the character creator or the artist will protect her/his character under copyright law, i.e. for the lifetime of the author plus sixty years. Shikari Shambu was created by Vasant B. Halbe and Luis Fernandes in the 1980’s as work made for hire, which in turn means, ACK is the lawful copyright owner of the character (we suggest you read this for more details on working for hire).

Protection of graphic characters is a grey area since they can be monetized on several mediums. For example, a comic book character can potentially be used in films, games, and merchandise (to mention a few). While the most commonly opted protection mechanism is copyright, there have also been debates on protecting characters as trademarks, whereby a character can be protected and exploited by a monopoly and in perpetuity. More advanced deliberations are ones where copyright and trademark laws are combined to create a copymark, but that’s just us jumping the gun.

Coming back to the case at hand, there is no doubt that the film producers have infringed ACK’s Shikari Shambu. It is only a question of how much they will be ordered to pay as damages. The main takeaway from this post is the importance of legally creating derivative work, a right that a copyright owner alone can license.

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