Advertisements, in video form or otherwise are designed in a way that they compel us to make assumptions about products. One of the methods used in such advertisements is to use character merchandising which make customers purchase products, regardless of whether they will use them, just because they are endorsed by celebrities that we hold in high regard.
Character merchandising is essentially a marketing technique through which products or brands rely on and adopt famous characters, these could be either fictional or those played by people, in order to sell their products as that character's merchandise. Thereby ensuring purchases by the character's fans. Such as using pictures of Chhota Bheem a child favourite to promote Parle-G, whose target customers are children.
This technique was first used by Walt Disney when they sold posters, badges, t-shirts, etc. with pictures of widely known characters like Mickey Mouse and Donald Duck.
The following are some examples of character merchandise:
- A t-shirt with an image of Joey Tribbiani
- tea sets
- Pokémon soft toys
- Harry Potter chess boards
- Motu Patlu water bottle
Character merchandising, according to the World Intellectual Property Organization (WIPO), is the adaptation or secondary exploitation of a fictional or real-life character by the originator or an authorised third party. This exploitation refers to the character's basic personality traits, such as name, image, or appearance, as they are employed in specific products or services. The goal is to establish a link between the products and personality traits so that the product/service appeals to clients because of their affinity for the character.
Types of Character Merchandising
There are three types of character merchandising, they are: -
- Character Merchandising entails the selling and/or advertising of goods or services using the essential personality traits (name, image, etc.) of fictitious characters. The characters are based on literary works such as, the Monkey and the Crocodile, the Stork and the Crab and the Loyal Mongoose from Panchatantra, as well as cartoons created for television shows like Kris from Roll no. 21, Doggy Don, Lambu and Ballu from Pakdam Pakdai as well as cartoons created for comic strips like Shikari Shambu, Kalia the Crow and Supandi from Tinkle. With popular animated movies with like Bal Ganesh and Roadside Romeo, cinematograph films have also aided character marketing. The most commonly merchandised characters are cartoon characters.
- Personality Merchandising makes use of essential qualities such as name, picture, voice, and appearance of real people. Their genuine identity is used to promote products or services. In this situation, the real person is well-liked by the general public and has an impact on people's minds. These well-known people sign endorsement arrangements with brands in order for the brands to benefit from their personality traits. For example, Akshay Kumar endorses GOQii's fitness watch.
- Image Merchandising is a hybrid of fictional character and personality merchandising. It entails using key characteristics of fictitious film or television characters, performed by actual actors, in the marketing and advertising of goods or services. In such circumstances, identifiable components of a film or series, such as dialogues and appearances in scenes, are used for marketing and advertising of goods and services. For example, Hritik Roshan promoting Chocos as Krrish.
Character Merchandising and Copyright law
For the protection of character merchandise, no country has passed a law that is either unique or sui generis, it isn't covered by any international treaties either. To safeguard character merchandise, each country must rely on the various statutes that it has implemented. Character merchandising is protected under the Intellectual Property Laws, which supplement national laws.
Literary and creative works are protected under Article 2(1) of the Berne Convention. The Copyright Act of 1957, Section 13, protects literary, artistic, musical, and dramatic works, as well as sound recordings and cinematographic films.
The work must contain certain elements in order to be protected under the Copyright Act of 1957, these include the work being original, being the expression of an idea and that it exists in material form. The owners and creators of a character are protected under copyright laws. The Copyright Protection lasts for the author's lifetime plus sixty years from the start of the calendar year after his death, after which the work becomes public domain.
A fictional character's performance may be protected by the literary work, and its performance may be awarded performers' rights under the dramatic work. For fictional characters to receive copyright protection, they must appear unique in the public's eyes. When a character is protected, it preserves not only the physical appearance of the character, but also all of the character's other attributes such as appearances and traits.
Judicial Trends
In VT Thomas and Ors. v. Malayala Manorama, the plaintiff used the cartoon sections of Malayala Manorama magazine to create imaginary characters Boban and Molly. Tom began publishing the cartoons series in other journals after leaving Manorama's employment. According to the court, works produced by Tom as the author of Manorama will be passed on to him. It was decided that the author owns the artistic work done as an employee throughout the course of employment. Termination is an example of when a process comes to an end. Tom, on the other hand, is free to draw and breathe life into his paintings in the future.
Further, in Star India Pvt. Ltd v. Leo Burnett, the defendants created an advertising for a consumer product called "Tide Detergent" for the Indian TV show "Kyunki Saans Bhi Kabhi Bahu Thi," telecasting it under the title "Kyonki Bahu Bhi Kabhi Saas Banegi," using characters who were identical to the plaintiff's characters in the serial. The court combined Sections 14(a), (b), (c), and (d) (1) of the Copyright Act, which stipulate that the author has the exclusive right to duplicate an actual physical copy of a cinematograph film. "The characters to be merchandised must have earned some public awareness, that is, developed a form of independent existence and public acknowledgment of itself independent of the original product or the milieu/area in which it appears," the court said.
In Disney Enterprises & Anr. v. Santosh Kumar & Anr., The Delhi High Court ruled that the defendants were liable for selling products using images of characters such as Hannah Montana, Winnie the Pooh, and others, whose merchandising rights were owned by the plaintiffs (Disney Enterprises Inc. & another). The court determined that as a result of this, there has been a strong bond formed between the plaintiffs and the aforementioned figures, and that any mention of these characters only brings up images of the plaintiffs in the minds of the general public.
And in Diamond Comic Ltd. & another v. Raja Pocket Books & Ors., The defendant in this case was the owner of the rights to adapt the popular character 'Shaktiman' into comics, which he had assigned to the plaintiff. After the plaintiff's character developed fame and a name in the comics community, the defendants began producing their own comics. The Delhi High Court ruled that because the defendant had given his character to the plaintiff, the defendant could not exploit it by creating their own comics, as this would be considered copyright infringement.
The Delhi High Court upheld the transfer of Daler Mehndi's trademark to his company in D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. in 2010. The defendant in this case was selling Daler Mehndi-like dolls that danced to his popular tunes, and the court ruled that this was a passing off. The court stated that an individual's right to publicity is his prerogative, and that only he has the authority to authorise or disallow commercial exploitation of his likeness or some of his personality characteristics.
Lastly, Titan Industries Ltd. v. M/s Ramkumar Jewellers was a case from 2012 in which the defendant used photoshoot images of Amitabh Bacchan and Jaya Bacchan for the promotion of Titan Industries' jewellery without their permission. Misappropriation of the couple's personality rights was acknowledged by the Delhi High Court, which stated that a claim for violation of the right to publicity requires "no proof of untruth, confusion, or deception, especially when the celebrity is identifiable."
Conclusion
If done by the owner or another authorised individual, character merchandise can be regarded legal; but, if done by anybody else, it will be considered illegal. Every act in a film, animation, or programme is owned by the copyright owner, and the producer thus has exclusive rights. Any commercial, billboard, or pictorial representation that is protected under Indian copyright law is considered an artistic work.
The copyright protection of fictional characters means that they must have the same attributes as a graphic character. The subject of what defines a protectable fictional character has been explored in numerous commentaries.
The vagueness in the Copyright Act of 1957 made it impossible to evaluate whether the unauthorised use of a graphic character would result in copyright infringement if the new work just had the character and not the other qualities of the original work.
Countries such as the United States of America have used the Character delineation test and the tale recounted to evaluate if "Character" may be given copyright protection. India is in dire need of the adoption of such tests in order to avoid future character-determination problems.
Author: Shruti Navayath- a student of NMIMS, Kirit P. Mehta School of Law, currently an intern at Khurana & Khurana, Advocates and IP Attorney, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com.
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