Character merchandising is a method of marketing which involves the use of a real person or a fictional character to advertise goods and services. The idea behind character merchandising is that customers will be drawn to the product in question due to its association with the character used for the purpose of commercialization.
In almost all instances of character merchandising involving a fictional character, the person or entity which organizes the merchandising activity is not the creator of the character. For this reason, character merchandising is closely linked to copyrights and copyright laws. All intellectual property rights, including copyrights, linked to a fictional character are usually vested with the character’s creator because at the time of the character’s creation, the creator is legally regarded as the sole owner of that character.
Copyright Protection for Fictional Characters
Fictional characters can be defined as works which may receive copyright protection. This is because most intellectual property authorities today understand that characters can be regarded as separate from the original works in which they appeared. These characters can then acquire a new legal identity when they appear in subsequent works.
The copyright protection from which a character’s creator benefits can be used to either allow or disallow character merchandising. This is because the character’s creator possesses the right of ownership. Creators may also transfer or license the right of ownership to another individual or entity. When they choose to do so, the individual or entity receiving the right not only obtains ownership of the character and associated copyrights, but also the authority over that character’s use in character merchandising.
Film Characters, Character Merchandising, and Copyrights
Copyrights related to character merchandising involving film characters can sometimes be a complex matter. This is because intellectual property regulations concern the film’s producer, the characters in the film, and the performers portraying the film characters. Copyright laws usually designate the producer of the film as its author. Therefore, the producer is often endowed with the authority to use the film characters in character merchandising.
All fictional characters can be copyrighted upon creation of the character. If the fictional character in question is animated, the producer of the film maintains all intellectual property rights over it. If the character is portrayed by a real-life person, the performers’ rights which could otherwise be accessed by the performer may no longer be used after the performer gives consent for the related performance to be used in the film. Thus, the producer may choose to use either animated or live-action film characters in character merchandising.
Copyrights, Character Merchandising, and the Public Domain
It is possible for a copyrighted fictional character to become part of the public domain when the copyright associated with that character expires.
Once a character enters the public domain, any entity may make use of that character for any purpose, including character merchandising, without risking infringement of the creator’s intellectual property rights.
To prevent characters from entering the public domain, creators of characters may sometimes opt for trademark protection for their characters. Although copyrights cannot be renewed indefinitely, trademarks can provide perpetual protection because they can be renewed as often as desired. However, as is true of any other trademark, only fictional characters which serve to distinguish products of one entity from those of another can receive protection through a trademark.
Copyrights, Character Merchandising, and Real People
One or more real people can take the place of a fictional character in character merchandising. When real people are used in character merchandising, they often make use of a created personality. A created personality includes fictionalized features and characteristics not actually present in the person. Any unauthorized use of a real person’s created personality is a violation of copyright laws.
It is understood that copyrights related to real people as characters cannot be extended too far. If such were to be the case, many people might begin to attempt to claim copyrights over personal elements which should not receive copyright protection. Therefore, the granting of copyrights linked to real people must be carried out with great caution, especially if those real people are to be used in character merchandising.
This article is brought to you by Exy Intellectual Property Malaysia and Singapore.