Character Merchandising: The illegal livelihood

We all have seen people doing mimicry or character inspired rakhi’s being sold in stalls or people wearing Costumes of famous cartoon characters like Mickey Mouse or Winnie the Pooh either at a mall or at a kids birthday party. Have we ever wondered whether they do it with the necessary permission ? Do they have a license? This question requires legal dissesction in the light of rights of merchandising character under indian copyright law.

What does copyright law say about merchandising characters?

Copyright as defined by section 14 reads as (Write the section)

“Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings”.When a character is developed a copyright should be given to them in order for them to have protection over their work which they created solely and wholly by themselves.People can take undue advantage of this as we all know how to earn some extra money,Traders tend to make something similar (Chota bheem inspired Rakhi, Ben 10 watch replica) and make a huge profit out of it. If the Cartoon Network Studios which have the rights are aggrieved by this the most they can do is sue these traders for an injunction and get some relief as well as damages.

What does the law present?

1. Under The Copyright act of 1957, The original creator of the copyright has all the rights which are with them till their lifetime plus 50 years after death, Hence if they feel their right has been infringed in any way they can approach the court for an injunction or claim damages. For example; Mahima has copyright over a character Suzi And Abhaya makes a doll with the same name as well as features. It is the right of Mahima to approach the court to get an injunction against Abhaya for producing that doll.

2. The Trademarks act 1999, According to section 28(3) a registered user can stop others from using the same trademark or a similar one since they enjoy an exclusive right over the mark now. For example; Sneha has a trademark over the Sesha mark and Vivek uses the same mark to sell clothing. It is Sneha's right to stop Vivek from using the same.

But these rights are copyright specified and not character specified if we take a look at The Copyright Act 1957, Section 50 throws light on the infringement aspect of a copyright which reads as “when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority does anything, or permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright”.

On a positive side a copyright can be obtained for the characters as there are two test known as story being told test which require the character to be the main protagonist around which the story revolves and not a supporting character or character delineation test in which the character should be well developed and have some traits or a character of its own which make him unique.

Why the need?

In September 2019, Omar lulu, a south Indian movie director in his movie “DHAMAKA” used the famous character “Shaktiman” for a 10 min scene and it was posted on Facebook. On seeing this Mukesh Khanna complained with FEEKA and later the director had to apologize and give credits to Mukesh Khanna for the scene since he was the copyright holder of the same.

The court in Arbaaz Khan Production Pvt Ltd vs Northstar Entertainment Pvt Ltd noted “The thrust of the argument is that it is possible to hold copyright not just in a literary work, but in a character. I understand this to mean the realization of a persona with iconic characteristics and traits that make him or her unique. Where such a character is developed and realized by a person entitled in law to hold copyright, there should be no difficulty in accepting that such copyright does subsist in that character and that a person or entity is entitled to it. The on-screen persona of Rocky from the Rocky franchise, James Bond from the film franchise (distinct from the literary character), certain characters from the Star Wars series and the many characters in Star Trek are all possible examples. I seriously doubt, too, that anyone can make a film of a dumpling- gobbling martial arts panda bear without authorization or complaint.”

Conclusion

Character merchandising is a livelihood for some people but it is unfair for the developer of the character to not get a royalty. All of the above-mentioned sections talk about one aspect which is protecting the rights of the original owner or the creator who created it. In the era where everything is available at one click protecting these rights becomes a difficult thing to achieve. In law we talk about not giving Trademarks to people whose trademark can deceive the public so why can’t this kind of proposition be imposed for characters which gain a reputation in the market. This is the reason why a law on illegality should prevail.