What is Character Merchandising?
At some point of time in our childhood we all have watched cartoons, comedy shows and various other forms of media. People have a tendency, after prolonged exposure to things they like, to become a great admirer of one fictional character or another, to the extent where we all wanted to buy goods or articles with their image on it- be it keychains, pencil boxes, t- shirts etc.
Characters like Harry Potter, Barbie, Mickey Mouse and the DC/Marvel roster have left an impression in our minds and we still remember them and continue to do so. With easy access to OTT platforms and rise of digital era people are consuming more media, and this has helped in the commercial usage of such characters for buying and selling character-related goods. This is where character merchandising comes into the picture.
It is a promotional mechanism where goods and services which are evocative of real life people or fictional characters are produced to draw the attention of the potential buyers. It is a process by which a famous personality or a creator of a fictional or real life character authorizes third parties via agreements to commercially exploit some of the features of such characters like name, appearance, sound etc. with respect to goods or services. The objective is to draw the attention of the buyers and customers so that they have additional motivation in buying such products, primarily due to the goods possessing the aspect of the character.
An Overview of Merchandising
The toy industry was the first to promote the use of such characters in commercial exploitation. Walt Disney first started merchandising its characters like Mickey Mouse and other characters in posters, T-shirts, badges and in the 1930s, and there still is a large market in this area..
There are three kinds of character merchandising-
Fictional or cartoon character merchandising: In this type of character merchandising essential features like name, image etc. are used in relation to the goods and services. The subjects are typically characters are originating from literary, animated or cinematographic works, such as Mickey Mouse, Bugs Bunny, Laurel & hardy and so on. Cartoon characters, particularly those owned by Disney, have a history of being the most merchandised characters.
Personality merchandising: This is also known as reputation merchandising. Here, essential attributes of a real life character like name, voice, image, appearance are used in relation to goods and services. Very often, famous celebrities leave lasting impressions in our minds and their features are used to draw the attention of customers. Such celebrities typically enter into endorsement agreement where they authorize third parties to exploit their likenesses. Examples of celebrity endorsement are widespread, dating back to as far as ancient Rome, where gladiators sponsored specific products for payment.
Today, we can see examples of celebrity endorsements everywhere we look, from billboards to commercials. Courts have also recognized the right of the personality over such merchandising. In the 2010 case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors, the defendants were selling singing toys identical to Daler Mehendi. The Court held that the autonomy to authorize the use of such features of a singer lies entirely with singer.
Image merchandising: This type is a combination of the fictional and personality merchandising. Here the essential features of fictional characters or real life persons are used in the marketing and exploitation of goods and services. In such cases the buyers are able to associate a character from a work when they view an image of the actor dressed in a particular manner. Some examples include Captain Jack Sparrow played by Johnny Depp, James Bond played by various actors, Hannah Montana played by Miley Cyrus and so on and so forth.
Legislations Governing Character Merchandising
In India there is no specific statute governing character merchandising. However, we do have provisions of the Copyright Act, Trademarks Act and Designs Act together giving protection against such merchandising.
In the Copyright Act copyright subsists in the literary, artistic, dramatic and musical works and protection is granted to creators of such works. These creators are given protection to prevent unauthorized use of their characters by third parties. The authors of books, comic series, novels and the producer of musical and cinematographic works grant permission to third parties to commercially exploit their characters. Actions taken without such authorization leaves the infringer to face legal actions as stated in the act.
In the Trademarks Act, Section 29 elaborates infringement of a registered trademark where the registered proprietor can prevent other from using similar trademarks in the course of trade without prior consent of the registered proprietor. In case of unregistered marks, the law of passing off can be invoked.
As per the Designs Act, the creators and owners of fictional characters can be granted design protection on products provided.
Conclusion
As we can see, there is no particular legislation governing character merchandising but the courts have recognized personality and publicity rights under Article 21, under the right to privacy. So any unethical use by way of merchandising which is not directly covered by current laws has the option to be argued against on the basis of right to privacy infringement.
This is still a developing field, and India is still a developing country, growing its business in various sectors and also in character merchandising. It may be advisable to consider new and emerging forms of intellectual property in the age of the internet and widespread popular media, and to form specific laws related to such spheres over time.
Author: Debarati Mukherjee, Legal Intern at PA Legal.
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