"Animated Works" : Jollity cum Chattels ?

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IPRs in Animated Works

An article written by Shobha Menon in 2007 read as “IPR to give industry an animated look”. It briefly discussed upon the then prospects and growth of the Indian Animation Industry with the then emerging technologies pertaining to VFX and others for making animated movies and cartoon shows. The article concluded on propitious marginalia about the opportunities for making India a hub for animation with the help of IPRs relating to animations.

Fast-forward to the current era, the Indian Animation IP production (excluding animation services) has a year-on-year double digit growth – almost double of what it was in 2012. The Indian animation has grown to over 100 animation character brands today, some of them being Motu Patlu, Shiva, Little Singham, Krishna, Aryan, Dabang Girls, Krish Trish and Batliboy, Jr. Gol Mall, My Bhoot Friends, icko & Super Speedo, Sab Jholmaal, Honey Bunny, Pakdam Pakdai, Rudra, Keymon Ache, Roll No 21, Super Bheem, Andy Pirki, Oye Golu, Gattu Battu, Mighty Raju, Kalari Kids, Kumbha karan, Chotti Anandi, etc.

With a technological boost like never before, Indian media, entertainment and technology companies are growing at an accelerated pace on the back of growing acceptance of our content, especially in animation, VFX, gaming and AR/ VR. The Indian animation and VFX have gained a lot of traction among the international producers and production houses. Top Indian companies have attained leadership to create content and distribute them in new markets. However, every producer needs to strategize their approach for their respective IPs based on the strengths and weaknesses of the show they are producing. India has become a creator of IP and this has led to the realisation that we need to protect our Intellectual Property.

IP in the animation and gaming industry are the legal rights over creations and are protected by copyrights, trademarks for making better margins. The following are the relevant IPRs with respect to animation industry in India :-

Copyright Protection

The most effective way of IP protection for animations would be that in the form of Copyrights. Several sections (as follows) of an animated show or movie can be copyrighted either in conjunction or separately :-

  • The drawings and sketches for making the animated character.
  • The animated character itself.
  • The story and/or script of the show/movie, if any.
  • The dialogues and songs of the show/movie, if any.
  • Other marketing aspects.

The Indian Copyrights Act, 1957 covers all the aspects for obtaining a strong copyright protection for the animated shows/movies, with distinct animated characters in it. Along with the statutory provisions, various judicial cases have also assisted in strengthening the Copyright protection regime for animated works. In case of DC Comics v. Towle the court opined that the ‘bat-mobile’ (the animated work) has unique qualities that gives it a different identity and provides for a special element, making it eligible for being granted with copyright. In another case of Star IndiaPvt. Ltd. v. Leo Burnett, the court opined that the animated character must have public recognition in independent life.

While copyright registration is not mandatory, given the nuances in relation to animated works, it would be prudent for filmmakers to obtain copyright registration for their key animated characters. Registration of copyright is an effective way to enforce one’s economic rights. In case of any dispute, copyright registration helps with the availability of necessary records and has evidentiary value. Proper IP Asset Management will make certain that all showings of the animated work provide global revenue to the copyright holders.

Trademarks Protection

While the copyright in a cartoon character, would eventually expire (after 60 years beyond the life of the creator) and fall into the public domain, however, the trademark does not expire after a set period of time and can live on indefinitely. The Trademark law not only protects the cartoon character, but also extends the protection to the character’s name and likeness.

Animated works are precisely protected under Section 2 of the Trademarks Act, 1999 which mentions that cartoon characters, names, logos etc. are protectable as a mark.

Along with the statutory provisions, various judicial cases have also assisted in strengthening the Trademark protection regime for animated works. In case of Disney Enterprises Inc vs. Gurmeet Singh, the Delhi HC recognised mark ‘DISNEY’ as a well-known mark. In another case of Warner Bros. Entertainment Inc. vs. Harinder Kohli and Ors., Warner claimed to have secured trademark registration in India for the word mark “HARRY POTTER” and alleged infringement by the Defendant owing to Defendant’s act of naming their film “HARI PUTTAR”, which is visually and phonetically similar to their mark. The court rejected the prayer to injunct the Defendant on the ground that the trademark HARRY POTTER is different from HARI PUTTAR.

Since the animated character being represented are mostly in a three dimensional or pictorial form on goods and services, such character can be protected under the trademark law. Animated works and cartoon characters are the most popular merchantable characters ever created thus fictional character merchandising is the use of fictional or cartoon characters in merchandising for commercial gains.

Patent Protection

A considerable and significant amount of technological equipment and expertise is used to make an animated show/movie – the camera itself as well as equipment for lighting, editing, sound and special effects. Many of these technological advancements pertaining to animated works can be protected by patents. For instance, the Dolby sound system, 3D CGI imagery using revolutionary new motion-capture techniques, etc. have all been patented. However, the patent protection can be considered more of an indirect method to protect the animated work, given that it does not cover the abstract idea itself.

With the growth of broadband, mobile technologies and emergence of digital media, the animation industry is witnessing a rapid transformation in a converging world. In this wake, IPRs and IP Asset Management is extremely important for its creators in the media and the entertainment sector, especially with respect to younger populations of India.