Legal Protection Afforded to Character Merchandising
As children, we used to love watching our number one kid’s shows like Mickey Mouse, Donald Duck, Scooby-Doo and some more. In the background, there is an intellectual who makes such kid’s shows and has the elite option to abuse those characters and keeps the outsiders from their misappropriation. Characters have a high monetary worth whether they are communicated as words or graphics. To forestall such abuse by outsiders or third party and to urge the erudite people to make more novel works, there is a need to sanction enactment which explicitly manages Character Merchandising.
Hence to prevent such exploitation by third parties and to encourage the intellectuals to create more unique works, there is a need to enact legislation which specifically deals with Character Merchandising.
Character merchandising is a marketing technique by which goods or services similar or related to the famous real or imaginary character are made for attracting the customers. In other words, the idea of character merchandising simply refers to creating a marketable product around a popular character, whether fictional or real. The Idea of character merchandising began when the Walt Disney Studios started licensing their renowned characters in 1930s, to the present day film product placements such as ‘Toy Story’ where cinemas are made around the characters to serve as a medium of promotion of toy characters. Development of the advertisement industry over the time has emphasized how the fame of well-known characters can build cognizance and immensely blow out the admiration of such goods and services. The main sources of characters for character merchandising is cinematic, literary and dramatic work.
Table of Contents
Types of Character Merchandising
Fictional Character Merchandising
The idea of character merchandising was started by Walt Disney Studio by setting up separate department for licensing the right to use its cartoon characters Mickey, Donald, Minnie or any other renowned character on different products. Popularity of the fictional characters amongst the people makes them most marketable characters ever created. Merchandising of an imaginary character is simply done by placing name, image, dialogues/sound on the products. One of the Indian examples is the use of Mickey and Donald cartoon characters on Cadbury chocolates. Use of various superhero characters on stationary products and lunch boxes is another example of character merchandising of the imaginary characters like cartoons. Whenever a fictional character is created it automatically enjoys the copyright protection as a general rule in most of the legal systems, the author or creator is registered as the owner of the copyright over the created character. The employer becomes the first owner of the copyright in a situation where such a character is created under his/her employment.
Celebrity Merchandising
Celebrity merchandising can be understood under two heads:
- Personality Merchandising
- Image Merchandising
Personality Merchandising using identity of a renowned person for publicity of goods and services is called personality merchandising. That renowned person can be from any field like cinema, music or sports, etc. The domain from which they belong gives them a unique value which can be used in association with product and service, also known as ‘reputation merchandising’. Personality merchandising emphasizes business through the following reasons: firstly, people can immediately recognize and relate to the product endorsed by their favourite character or personality and secondly, consumers tend to buy products which are endorsed or have any connection with celebrities.
Image merchandising is a fictional character played by real person: in the simplest sense image merchandising is using of a fictional character played by a real life person. These fictional characters are usually created in a literary work while making cinema from the literary work, the characters are played by the celebrities. In such cases, those characters are identified by the actor/celebrity who has played that role. Some of the examples are Sherlock Holmes and Iron Man played by Robert Downy Junior, Harry Potter and Hermione Granger played by Daniel Radcliffe and Ema Watson respectively, Captain Jack Sparrow played by Johnny Depp etc.
Indian Constitution:
In case of conflicts related to character merchandising, to be definite or specific personality merchandising India typically and mostly takes recourse to old constitution principle of ‘right to publicity’ or common law principle of passing off. Observing at the pace at which entertainment industry is growing and developing these principles are becoming vague as well as imprecise. Article 21 of the Indian Constitution contemplates about right to life and personal liberty. Delhi High Court in 2003 opined that the right to publicity of a celebrity is enshrined in Article 21 of the Indian Constitution (ICC Development International v. Arvee Entreorises). Current observations and interpretations show that the Indian constitution does not cover the benefits of the producers and copyright proprietors or owners.
Trademark related issues
Graphical representation of any name or mark which can lead to the source of a product or service is known as trademark. Owner of a trademark enjoys exclusive right to use or usage of such mark and unauthorized use of such mark aggregates or amounts to infringement of such trademark. A condition where the trademark is not registered, then the owner of the trademark can look for remedy under common law of passing off. Typically, owners of a character registers trademark or goes for a remedy under passing off for stopping and preventing anyone from using any character or from using any indication which demonstrates the customers any type of link between the product and character. An association of a celebrity with a product puts fame of celebrity on the product and allows or consents people to connect with the product instantaneously.
In India the Trademarks Act, 1999 is the maximum utilized statute on adjudicating matter associated or related to character merchandising. Provisions of the Trademarks Act are broad in nature and hence are easy to apply on matters related to character merchandising. Section 102 and 103 contemplates that, falsely using any trademark or falsely applying any trademark on any goods or services without consent or approval of the respective trademark owner is an offence punishable with imprisonment and penalty. If any individual wants to use any registered trademark on any goods or services he requires to take prior permission or consent from the trademark owner and convert or become a registered user of the mark.
As per Section 50(1) (d) of the Act a registered user of the trademark shall be removed if he does not conserve quality of goods and services according to the terms of licensing agreement. Situations where trademark is not registered owner of such mark can resort or recourse to the action of passing off. For consequent succeeding in an action of passing off owner has to establish and prove that his mark has a status i.e. reputation and goodwill in the market and use of the same mark by defendant will result into injury, harm and damage upon the benevolence as well as goodwill of the mark.
Because of non-availability of any specific or particular law with respect to character merchandising producers of cinematographic films and celebrities frequently choose passing off action for protection or defence of their name. Owner of a fictional character can correctly protect their creation by registration under the Act, which will also be beneficial from the professional commercial business point of view for licensing the characters.
Legal Protection Afforded to Character Merchandising
No nation so far has enacted a sui generis legislation on the protection of character merchandising. Also, there survives no distinct, discrete, single and separate international treaty or standard dealing with the same. The rights attached to a character are usually conferred with the creator of the character. In Diamond Comic Ltd. and Another. vs. Raja Pocket Books and others., it was apprehended and held that if the creator has licensed or transferred his right to another separate individual, that individual becomes the owner then. Nevertheless, in cases of image merchandising, the rights are customarily or normally attached to the actor/ real person playing such character on- screen, and his/her consent becomes significant for commercialization.
It was held in Arbaaz Khan vs. North Star Entertainment Ltd. that the copyright ability of a character depends upon its uniqueness or exclusivity. The important as well as significant factor to assess it is if the character has iconic traits that make him/her unique or exceptional, and whether it is developed or advanced and realized or apprehended by an individual or person who is entitled or permitted by law to embrace or hold the copyright.
Conclusion
Character Merchandising has begun to acquire ubiquity or popularity because of business misuse i.e. commercial exploitation. The Intellectual Property (IP) law isn’t adequate or sufficient to secure as well as protect the vulnerabilities and uncertainties which are engaged or involved with ensuring the protection of character merchandising.
Taking a gander at the current circumstance or more pondered realities it has gets important to give a resolution to managing character merchandising related issues, or to utilize existing rules with more extensive translation where privileges of the VIP can be ensured with the protection without upsetting the privilege of copyright proprietor or copyright owner.
READ ALSO
LAWS REGARDING OTT PLATFORMS IN INDIA
Like and Follow us on :
