Abstract
What is it that ‘Popeye the Sailor’, the ‘Teenage Mutant Hero Turtles’ and ‘Tarzan’ have in common? Besides being well-known fictitious characters, each of them is overwhelmingly successful in terms of entertainment (for the public) and revenue (for the industry behind it). They exemplify the possibility of the fictional characters’ owners not only using them for their basic purpose, i.e. in books, comics, movies, broadcasts, etc., but also of secondary exploitation of the characters’ gained reputation, by granting licenses for manufacturing and distribution of mass market merchandising like posters, tee shirts, toys, badges, etc. This business is also known as ‘Character Merchandising’, involving the use of the essential personality features (name, image, etc.) of fictional characters1in the marketing and/or advertising of goods or services (WIPO, 1994, p. 8).
Highlights
In most of the cases it will not be a matter of the fictional character being capable of 4 copyright protection in its image or depiction
The outcome of this decision suggests a strong position for the copyright owner: infringement of copyright in the physical features and attributes of a fictitious character can take place where the unauthorised reproduction, constituting an exact copy or a substantial reproduction of any physical characteristics portrayed in the original work, gives rise to any person recognising these features and attributes of the original character in the reproduction (McGee and Scanlan, 2003, p. 475/6), no matter whether two-or three-dimensional
The copyright protection of the image and appearance of fictitious characters 8 in terms of merchandising might seem wide-ranging after King Features Syndicate Inc., the devil is in the detail: the copyright owner has to show that the unauthorised merchandising products are copies of the character, not mere resemblances
Summary
In most of the cases it will not be a matter of the fictional character being capable of 4 copyright protection in its image or depiction. The fact that the reproduction was of the concept of a humanoid turtle, rather than of any of the claimant’s particular drawings, raised the judge’s concerns over the decision on copyright infringement in full litigation, it did not prevent him to grant an interlocutory injunction -but mainly based on the law of passing off. This is a classic example of the problems posed by the way in which copyright law will only protect the expression of ideas, but not the ideas themselves The general idea or concept, of e.g. a pipe-smoking sailor gaining incredible strength from eating canned vegetables or ninja-fighting humanoid turtles will still be available for the public domain, allowing – in terms of copyright law – to create similar characters and produce merchandising thereof without the exact (or substantially exact) graphical features of the original
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