The Evolution of Clearances for Animated Programming
Unlike some live-action shows, animated TV isn't just limited to a television screen. It branches into other areas such as merchandise, spin-off series, toys, apps and games, clothes, lunchboxes, online website content, YouTube videos, etc. Having DVDs, books, branded clothing and toys can ensure an animated program’s future. And as such, animation houses are thinking more broadly as children’s entertainment creators.
We are now living an in a time where web-series is the most watched form of entertainment and there is an ever-expanding sprawl of streaming video on demand. The rise of streaming has helped give animation a wider platform and as such, productions are becoming more concerned about protecting these properties.
The average Canadian spends ~10 hours daily consuming various forms of media, with digital media accounting for 50% of daily consumption habits and mobile phones accounting for 1/3 of media time. Studies suggest that Internet consumption, when combined with mobile usage, has surpassed TV consumption.
When developing an animated series that has enormous commercial potential, production companies are no longer just thinking about the characters in the series, but also in other media formats and merchandising activities. As the creators develop the character, they consider the characteristics that provide a character's uniqueness; a name, physical appearance, and attitude or character traits.
If the character is used outside of the series, the production company wants to ensure that it is protected. It’s rare to see a cartoon character in only one medium. It is not uncommon today to find a character that makes its first appearance in an animated series to be immediately licensed for toys, other products and services, and to be exploited in other media formats. And as such, characters need to be protected by a combination of copyright, trademark and unfair competition laws.
The 1976 US Copyright Act provides creators and/or owners of graphic characters copyright protection that is strong, but limited. The copyrightable expression of a character is much more than just the character's physical appearance; it includes the specific name, physical appearance, and character traits of that character.
One of the more difficult problems of applying copyright law and protection to an animated character is protecting a particular character once that character has taken on a life of its own and the character is no longer existing only in the original context in which it first appeared. Copyright law will find that copyright infringement has occurred when someone other than the rightful copyright owner of the character uses that character without permission, especially if such use copies the appearance and unique character traits that distinguishes the particular character.
But, because copyright law does not protect ideas from infringement, and only protects the expression of those ideas, courts will not protect character types. Therefore, the best way to protect an animated character under copyright law is to ensure that the character's appearance and personality are specific and unique.
Trademark law does not allow for an animated character to be trademarked solely for its own protection, but it does permit the character's name and likeness to be trademarked and as such, several of our larger animation clients are requesting additional classcode research in the trademark offices for animated characters and elements. They are interested in reviewing what exists in classcodes 38, 41, 3, 9, 16, 18, 24, 25, and 28, which cover such things as telecommunications services, education and entertainment services, toys and games, sporting equipment, video and audio equipment, paper goods, textiles, clothing, and cosmetics and cleaning preparations.
Additionally, clients are requesting design and image reports to ensure that their animated character, prop, product design or logo is not inadvertently similar to an existing property. This type of search involves meticulously sifting through images from a vast collection of databases, including but not limited to reverse image software and Canada, US, and international trademark design marks. This report provides a detailed account of any images, toys, products or design marks that are notably similar to the item and helps provide peace of mind that the design is not infringing on any other proprietary works.
The Research House Clearance Services specializes in providing research services for the entertainment industry, including script clearances, title searches and Design & Image Reports. Visit their website here.
Guest post by Erin O’Brien and Krista Johnston office@researchhouse.ca 604-837-8461
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