Commercialization of products which are based on major
personality features (names, portraits, characteristic features) of
real or fictional characters and/or materials appearing in a Film
may be defined as character merchandising. Products which are
promoted on the market via this method vary form games, toys,
action figures to textile products and posters. As one of the best
examples of character merchandising, today one can see Star Wars,
Spiderman or Mickey Mouse related products at any shop he/she
Character merchandising is a term originating from Walt Disney
Studios' attempt in 1930 to set up a new department for
licensing its fictional characters to be sold as tangible goods to
consumers. This method which has developed rapidly in 20th century
still continues to expand its coverage with new films.
When we look from Turkish Law perspective; products, which are
produced and offered for sale with regards to character
merchandising in Turkey, can be considered under protection of
Turkish Law on Intellectual and Artistic Works ("LIAW").
All characters (both real and fictional) in Films are defined as
"personifications" according to LIAW. The second work
which is created by using or based on another original work is
defined as "derivative work" according to same Law.
Therefore the products defined above (e.g. toys) should be
considered as "derivative work" and benefit from
protection of LIAW.
Many countries and jurisdictions have been regulating specific
and extensive legislation in this area and improving their case
law. We also believe it is important to review this fast-growing
Types of Character Merchandising & Author Rights
According to WIPO's publication No. 489 (E) dated 2004,
there are two main categories and one mixed category to define
Fictional/Animation/Cartoon Character Based Merchandising
This is the oldest merchandising method arising from Walt
Disney's attempt. In this type of merchandising,
animation/cartoon character's essential personality features
are used for marketing and advertising of products. Name, image,
sound or dialogs of characters can be used for marketing. It is
possible to (i) use relevant image as either two or three
dimensional reproduction, so that personality features of the
character are placed on the product (Popeye printed t-shirt); (ii)
or to use the character itself as a product (R2D2 toy).
Personality (real person) Based MerchandisingM
This method uses personality features of a real person,
independent of her/his role in a film, for marketing and
advertising of products. Name, image, sound or other features of
such person can be used for marketing. For success of this
marketing technique, surely, this "real person" should be
well known (celebrity) by majority of the public.
Image Based Merchandising (fictional characters played by real
In this method, major personality features of fictional
characters played by real actors are used for marketing and
advertising of products. Purpose of this method is to draw the
attention of public which is interested with both the
"actor" who plays the character and the
"character" itself. As a result, this type of
merchandising is considered as a mixed type by WIPO.
In order to identify the right holders, it is important to begin
with identifying the "rights" first. While the rights in
relation to fictional characters should be specified as financial
rights and exploitation rights; the rights of real persons should
be specified as personal rights.
In this context the right holders with the authority do decide
on commercialization of products – for abovementioned three
types of merchandising – should be defined as follows;
For fictional/animation/cartoon character based merchandising:
character's copyright holder,
For personality based merchandising: person/celebrity
For image based merchandising: film's copyright
Certainly, the right holders can transfer or license their
merchandising rights to third parties. The usual practice of right
holders is to license these rights to third parties as they do not
have the possibility to manufacture and sell these film-related
products themselves. In return of the granted merchandising
license, the right holder typically receives an advance payment and
relative royalty payments for each product sold. In the event of
the film failing to reach success and the products not selling, the
manufacturer incurs the loss. It is, therefore, important to
explicitly define the scope of license and relevant commercial
terms in the process of licensing of merchandising rights.
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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