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The Legal Aspects of Character Merchandising in India

Khurana and Khurana, Advocates and IP Attorneys India


Introduction

Almost all of us have at some point, after reading comic books or watching a cartoon or movie, become fans or great admirers of some real and fictional characters and spent money on buying products with their image on it or products which the characters endorsed. This includes purchasing school stationery as well as T-shirts, keychains, and mobile covers. Whether it was the beloved DC & Marvel superheroes, cute Harry Potter, or even just plain old Barbie or Mickey Mouse, they all had an influence on us and we still think back on them with nostalgia even after all these years.

The number of top-notch films and web series that the general public watches is rising daily due to the ease of access to OTT platforms around the globe. This has led to the global commercial exploitation of these real and fictional characters in advertisements for goods and services.
Character merchandising is defined as “the adaptation or secondary exploitation of a fictitious character by the author or by one or more licenced third parties”. This exploitation relates to the character's essential personality traits, like a name, image, or appearance, and is done to establish a connection between the products and these personality traits in order to incite customers' attachment to the character and make them want to purchase the product or use the service.
The name, picture, voice, or appearance of a character, or symbols that allow the general public to recognise such figures, are examples of personality traits. Comparably, the term "secondary exploitation" describes a use of the character that differs from its major use or activity; nevertheless, this type of secondary exploitation is so dependent on the first use as to be unfeasible.

The toy sector, which continues to be the largest market today, was the first to recognise the use of popular characters. In the 1930s, Walt Disney launched the first organised system of character merchandising by peddling T-shirts, badges, and posters using his well-known animated characters, including Donald Duck, Mickey Mouse, and Minnie Mouse.

Types of Character Merchandising

Character merchandising can be categorised in three categories: image merchandising, personality merchandising, and fictitious character merchandising.

Character merchandising based on fiction encompasses artistic creations such as Cinderella or Pinocchio, as well as fictional characters from films like Mickey Mouse, Batman, Donald Duck, and so on. When these characters and their key components appear on a product, buyers are drawn to them and crave these features more than the actual goods.
Then there's personality merchandising, which includes merchandising that features the actor portraying the role rather than just the character. Iron Man is a great illustration of this; for instance, people readily link red and gold t-shirts with Iron Man, and they purchase them as a result of it
. On the contrary, if a cricket player endorses a deodorant brand, people will purchase the product because of the cricketer's unique personality and association with that brand.
The last type of merchandising is image merchandising, when the actor and the role he portrays are the same. People tend to identify a person with their character rather than their true self. For instance, Robert Downey Jr. is better known for his roles as Iron Man and Tony Stark than for being himself. As a result, people are more likely to purchase toys or other memorabilia featuring his voice or face as Iron Man.

A further type of character merchandising that can be differentiated from the preceding example is the merchandising of artistic works, which includes artworks that are used on objects. For example, Leonardo Da Vinci's artwork, particularly the Mona Lisa, is incredibly well-known and is the basis for merchandise in numerous museums.

 

Protection for Character Merchandising

The protection of various intellectual property laws, primarily those pertaining to trademarks, copyrights, and designs, extends to character merchandising, which is not subject to any particular regulation. When it comes to product merchandising, copyright offers the owner more crucial protection. For instance, the creator of cartoons or animated images and pictures becomes the owner of those creations and can grant others permission to use it in a way that permits merchandising of the characters or any other aspect of their work.

The Hon'ble Bombay High Court addressed and established this in the Arbaaz Khan v. North Star entertainment P vt. Ltd.[3] (2016) case, even if a character's copyright-ability depends on how distinctive they are. “As to the general principle that the character is unique and the portrayal of that character, as well as the "writing up" of that character in an underlying literary work is capable of protection is something that I think I can safely accept,” the court concluded when deciding whether a copyright exists in the character “Chulbul Pandey” from the Dabangg franchise.

When considering the ques, Is it possible for copyright to exist in both the literary work and the character as well?, the Court held that, “the realization of a persona with iconic characteristics and traits that make him or her unique. Accepting that copyright does exist in such character and that a person or entity is entitled to it should not be problematic in cases where such a character is conceived and realised by a person authorised to hold copyright under the law. Possible examples include John McClane from the Die Hard franchise, the many characters in Star Trek (especially Kirk, Spock, and McCoy), the on-screen persona of Rocky from the Rocky franchise, James Bond from the film franchise (different from the literary character), and a few characters from the Star Wars series, such as Darth Vader, Obi Wan Kenobi, Han Solo, and Chewbacca.Thus, it was determined that in order for a character to be granted copyright, the character itself had to be unique, as well as the literary work (the character's development and writing) that was the subject of the copyright. The plaintiffs' copyright claim over the character was upheld by the court.
Character merchandising is covered by a number of different intellectual property laws, which frequently leads to overlapping. A character that originates in a literary work is immediately covered by
copyright laws, for instance, all the movies or series based on famous novels have fictional characters that have a separate copyright such as Harry Potter Characters, Game of Thrones Characters; when an artist makes a drawing of the character again its protection is governed by the copyright law, for instance, every superhero film features characters that are already protected by copyright and come from comic books.

 

Ownership of Rights for Character Merchandising

Character creators typically hold the rights associated with their creations. Unless the character's originator has granted another person a licence or transferred his ownership, in which case that person takes ownership. The employer would be the proprietor of the work if the character was developed throughout the course of employment.
When merchandise is based on the likeness of a well-known actor who plays a particular role on screen—that is, when there is image merchandising—the rights are associated with and belong to that actual person, the actor.

 

CONCLUSION

Character merchandising has gained popularity in India recently due to its commercial aspect. In layman's terms, it means that a character (picture, actor portraying a character, etc.) is merchandised to generate revenue, and this is accomplished by leveraging the character's notoriety or appeal. Due to the vast extent of character merchandising, the current intellectual property laws may not be adequate to ensure the concept's validity in its whole or to defend against its vulnerabilities. While the copyright law safeguards an individual's works and the trademark law protects names and certain images, they are insufficient to prevent illegal commercial use of a person's or fictional character's reputation.

India is a thriving market for merchandise, with kids' character merchandising achieving historically unheard-of success. Indian comic book characters have a plethora of opportunities for commercialization.
In spite of the benefits associated with the concept of character merchandising, it appears that its implementation must be balanced between the need to protect individual intellectual property rights and the need to preserve competition. As Vice President of Sales at Todson Steward Goldsmith put it, “Good merchandising will always take the consumer from deciding whether that are going to buy which they are going to buy”.

 

REFERENCES

  1. http://www.jstor.org/stable/43953480
  2. Character Merchandising: The Concept And Its Growth (legiteye.com)
  3. An Overview of Character Merchandising (ipthink-tank.com)
  4. Character Merchandising - Law Times Journal
  5. Wipo, Report on Character Merchandising 6(World Intellectual Property Organisation., Geneva, 1994)
  6. Character merchandising - all you need to know - iPleaders
  7. Character Merchandising and Copyright: An Analysis - Lexology
  8. https://www.wipo.int/export/sites/www/copyright/en/docs/wo_inf_108.pdf
  9. https://lawtimesjournal.in/character-merchandising/

Khurana and Khurana, Advocates and IP Attorneys



About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Fax91-120-4516201
Contact PersonTarun Khurana
Emailinfo@khuranaandkhurana.com
Linkwww.khuranaandkhurana.com


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