India: The Magic Of Characters

Last Updated: 9 December 2014
Article by Zoya Nafis

With competition rising in the market, producers or manufacturers opt for practices that are unique and creative to market their goods in a better way than their competitor. Character merchandising is one such way. In today's world we get connected to the famous fictional characters from movies, books and even real life celebrities. Every child in India would want to own a Chhota Bheem's bag, lunch box or other stuff, or what about a Mickey Mouse t-shirt. This is not only restricted to kids even adults these day fall for such goods like who does not wish to own an Iron Man t-shirt. Though this idea seems really interesting and creative, people practising it must be cautious to understand the implications. As the whole concept of character merchandising is based on someone else's work, there are numerous legal consequences that revolve around it.

Character Merchandising is merchandising based on the use of fictional characters or real life personalities. It involves the creation of a merchantable product around a famous fictional character or real life personality. The idea of character merchandising came from Walt Disney Studios which created a separate department to license the rights to use its popular cartoon characters like Mickey Mouse; Minnie and Donald on various consumer products. The concept of 'characters' became more prevalent by popular magazines and comics. Merchandising became an industry in its own right with the arrival of movies, television and advertising. In recent years, the business of 'merchandising' of names and images of fictional characters and celebrities has become common, and is certainly a multi-billion industry in the Western World. In India also this industry is well developed now. Real life celebrities or personality merchandising is another form of character merchandising which has also become famous with the increasing number of celebrity endorsements. Celebrities from various fields like sports, movies, music, politics etc. are engaging themselves in product endorsements. This amplifies the popularity of a product as consumers can associate the goods with the celebrity and they tend to buy the product that supposedly form a part of their famous celebrities' lifestyle.

People who support protection of characters believe that the main reason for a consumer to buy certain goods is because of the name or image, appearance or voice of a character on the product. The essential features like the name, image, appearance or voice of a character adds the merchandising value to a product. Like all of us can be guilty of spending more than a usual price for a product having any reference to our favourite character or celebrity. Therefore the owner must be consented before any use of these characters and must be benefited by any such use.

With the increasing popularity of character merchandising, it is important to consider the legal issues related to it. There is no law as such in India in regard to character merchandising. Therefore the Indian Courts while deciding any issue involving character merchandising resort to Constitutional Law, Copyright Law, and Trademark Law and even to common law principles.

IP rights such as trademarks, copyrights and designs belonging to others are used by the producer of goods/services in case of character merchandising. The producer of goods could, however, do that only through licensing of relevant IP rights. Any unauthorised use amounts to infringement and could lead to legal consequences.

The author is the owner of copyright. Once the characters are created the copyrights lies with the author who creates them but in case of cinematograph film, the producer is considered to be the owner of the copyright. However if the character is independently created as a literary or artistic work, outside the employment of the producer, and is suitably distinct so as to be granted copyright protection, in that case, it is the creator who is said to have the copyright protection over such characters. Often these characters are exploited without the permission of their owner for commercial benefits.

Lot many authors or producers now trademark their characters and images of those characters. The popularity of the character or the personality used for a product plays an important role in its successful marketing. Trademarks for characters are protected with the same rigor as the trademarks for other commercial products. Trademark protection for characters can exist concurrently with such protection under copyright law or can exist after the expiration of rights under that copyright law since trademark rights can go on virtually forever as long as the use qualifies, the mark is not "abandoned" or has not become "generic" and the appropriate filings are done. Unlike copyright protection which has a fixed term. Unauthorized use of such registered mark amounts to infringement and may lead to adverse legal consequences.

A celebrity by his work creates a persona of himself. When his image or persona is associated with a particular product, it results in commercial benefits. A celebrity is the sole person to decide the commercial exploitation of his image and personality. Any use of their personality in regard to any product without their consent might lead to adverse consequences. As per Article 19 of the Indian Constitution, celebrities have a right to publicise their personality.

However these existing laws are ill-equipped to provide stringent protection to the owners of these characters or to real life celebrities as these laws do not explicitly provide on the subject matter of this issue. Though it is well settled that these characters or celebrities establish an independent public recognition and only they should have a claim over any commercial benefit drawn because of the use of their name or image, innumerable instances keep on happening where the image or name of these characters or celebrities are used by others without their permission. There is a high demand for products based on famous fictional characters or real life personalities. The merchandisers must be cautious while using any famous character. To avoid any adverse consequence, the best way is to have a license from the owner. The legislature should now recognize the realities in order to maintain the balance between the need for competition and the need for the protection of intellectual property rights. As the nature of protection given to these characters is not clear the need of the hour is to have an explicit law in regard to the licensing and protection of these characters. A law would not only protect the interest of the owners but also the merchandisers by providing them a clear notion on licensing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Zoya Nafis
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