1. THE LAW OF CHARACTER MERCHANDISING IN INDIA
Presented By –
Ritvik M. Kulkarni
Harish S. Adwant
III BSL LLB
ILS Law College, Pune

2. INTRODUCTION
The Movie / Entertainment Industry is one of the fastest growing business in the world, as also in India
This growth is owing to the huge increase in accessibility to the cinema screen to almost all economic sections of Indian society.
The Film and Television industry casts a unique influence over its consumers in India; who attach major importance to inter alia the stories, actors and characters of Television Series and Motion Pictures.
This has been possible due to the priceless contributions of cinematic geniuses; who have pushed their creativity to the limit and have produced literary and cinematic gems from their intellectual prowess.
Tell about some of the famous quotes quoted by fictional characters in a movie, e.g. “Kitne Aaadmi They?” Gabbar Singh
“Eh, What’s up Doc?” Bugs Bunny

3. WHICH T-SHIRT WOULD YOU
RATHER BUY? OR

4. Character The Phantom, Created by Detective Comics Mickey Mouse,
Created by Walt Disney
Chota Bheem,
Created by Rajiv Shukla,
CEO of Green Gold Animation

5. Other Public Personalities (Whether Animated or played by Actors)
Characters
Real
Entertainment
Sports
Other Public Personalities
Fictional
Humans
(Whether Animated or played by Actors)
Non-Human

6. CHARACTER PROTECTION The Copyright Act, 1957 –
Offers statutory protection to the original expression of an idea in the form of artistic and literary works.
Creates ownership rights, and therefore a limited monopoly, in the copyrighted work.
For instance, when any person (or company) writes a script or story for a movie, it receives automatic protection of the Act.
The Trade Marks Act, 1999 –
A trademark is a unique symbol, used by a manufacturer, which distinguishes and protects his/her goods (or services) from others.
Similarly, a well developed character can be used on goods and / or services only by its copyright owner.
Concurrently, the owner has the right to prevent others from making unauthorized use of such a character.

7. A WELL DEVELOPED CHARACTER?
In Nichols v Universal Pictures, Judge Learned Hand stated that the test determines whether the particular character is sufficiently and distinctively delineated so that it warrants protection. He also stated that it follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.
This test was interpreted more strictly in Warner Brothers Pictures v Columbia Broadcasting; wherein it was held that no character is protectable unless the character is extremely well-delineated as to constitute ‘the story being told’ rather than merely being a ‘chess man in the game of telling the story’.
As per the Indian scenario, in Malayala Manorama v V. T. Thomas, the Kerala High Court impliedly distinguished between the drawings made using the cartoon character and the actual cartoon character. The Court deciphered that the copyright over the drawings made using the character would vest with the publishing house as an artistic work, while the copyright over the actual character remains with Mr. Thomas.
There are two main tests to determine the copyrightability of a character.

8. These Princesses earned by the sale of their merchandise.
$1,520,000,000 (1.52 Billion) in 2012
by the sale of their merchandise.

9. MERCHANDISING: LAW AND PRACTICE
Character merchandising
Secondary exploitation of a fictional (or real) character by using the (image, name, or appearance) of the same on goods in order to create or increase the consumer’s desire to purchase.
Consumer-Mostly children due to affinity to favorite character.
Creator makes additional profit which will eventually contribute to strengthening the national economy.
However, the law, as well the practice, of character merchandising is highly undeveloped in India

10. Creates the story and its character(s)
Then assigns all
his rights
to a third party
for a fee
The Proprietor of
the Character(s)
then grant licenses
to Manufacturers
Who Manufactures
the merchandise
using the character(s)
And then distributes
the products
to retailer for sale to the consumer

11. LEGAL DEVELOPMENTS IN INDIA
Star India Pvt. Ltd. v. Leo Burnett (India) Pvt. Ltd., the Bombay High Court held that character merchandizing involves the exploitation of fictional characters or the frames of celebrities by licensing such famous fictional characters to other means when the character has developed commodity value of itself.
The Delhi High Court in Disney Enterprises Inc & Anr. vs Santosh Kumar & Anr., held that the defendant was liable for selling products containing representations of characters such as Hannah Montana, Winnie the Pooh, etc whose merchandising rights were owned by the plaintiff. The court held that there is an intense degree of association between the plaintiffs and the aforementioned characters which is why any reference to these characters reminds the public exclusively of the plaintiffs.
In D.M. Entertainment Pvt. Ltd. V. Baby Gift House and Ors., the Court then pointed out that the right of publicity of a celebrity can, in a jurisprudential sense, be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality.

12. UNTAPPED RESOURCES
According to PwC Reports, The Indian Entertainment Industry is expected to reach Rs 2,272 billion by 2018 at a compound annual growth rate of 15%. It is said to be fastest growing entertainment industry in the world.
PEW Research Centre Internet Project Survey revealed that the current demographic, more particularly, of the age group 18 – 29 have almost 97% access to the internet and other forms of media. As a result, they have been exposed to these movies, TV Series, Games, Books, etc. Today’s children and youth also have a greater power of purchasing as they also have access to money.
Indian Production Houses, Individual Producers, Celebrities, Cartoonists, Magazines, Newspaper Houses etc. can capitalize on this newly evolved market, with the consumers forming the major chunk of the current demographic.
This will attract huge investment from both domestic as well as international investors in a market which has been known as market with low risk and high returns.

13. RECOMMENDATIONS
Use of licenses and assignments, a major part of character merchandising, be dealt with under the law of contract.
The law on character merchandising be codified in India.
Copyright Law be amended to expressly bring fictional and real characters under the purview of Copyright protection.
The Copyright Act, 1957 should incorporate the specific aspects of a character’s personality (voice, image, appearance, tag lines, actions, mannerisms, etc.), safeguarding its protection.
Whether or not a particular character is delineated enough receive copyright protection depends upon the facts of each case. If there arise any ambiguities in the legislation, the authorities laid down by several Courts on this issue can be relied upon.
Subsequently, trademark and Industrial Design law should also be similarly amended.

14. CONCLUSION
The Indian market for merchandise and other such products is at a nascent stage at present
However, there is a great potential for growth if the law on the subject is properly laid down by the respective authorities after extensive deliberation.