Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney
Can Cartoon Characters Be Used?
Is it possible to use images of famous cartoon characters for promotional purposes? This is a matter that has recently become increasingly relevant. The images of the popular animated characters can provide a steady demand for the goods for children and adolescents, and many entrepreneurs use them willingly in their activities, believing that they contribute to their even greater fame in this way and not thinking about such actions as copyright infringements. Nevertheless, it is illegal to use the images of cartoon characters without the proper permission.
Any cartoon character is a subject-matter of copyright, like any other work of art. Each character has its own author and right holder, and therefore it can be used only, if there is permission. And this permission should be issued not by the person who has invented the character, but by the person who is the rights holder to it.
In order to obtain the appropriate permission, it is necessary to apply to the company-right holder or its regional office. The document confirming your rights to use the image will be a license or sublicense agreement, in which it will be clearly specified where, how, in what volumes and in what manner the right holder allows you to use the image of a particular cartoon character. Entering the contract is the only legal way to use the famous characters in one’s work.
Misunderstandings often arise in the event that the company- right holder registers the image of the cartoon character as its trademark. In this case, the character is represented in a certain pose and certain clothing. In addition, the trademark shall be registered only for a certain class of the ICGS. Many people believe that by changing the pose or clothing of the character, and also using the aforesaid designation for the goods of another class, they will no longer infringe the rights of the company- right holder, but this is not true. The fact is that the issues relating to the use of trademarks and the issues regulating the use of the subject-matters of copyright are regulated by two completely different fields of law. And if it is really possible to avoid the infringement of the rights of the company that has registered the trademark by changing something in the image of the character and using the aforesaid designation for the goods of other categories, then the copyright infringement will be in any case. In this case, the issue of the character's recognizability will play a key role. That is, if the image of the character is reprocessed, but the character himself will remain recognizable, this character can not be used without permission. If you can prove that you have drawn your own character and this will be confirmed by an independent artistic examination – there will be no copyright infringement.
Thus, the protection of the character of the work of art by the copyright assumes that only the author or other right holder has the exclusive right to use the character in any way, including for advertising purposes, and any third party who wishes to use the aforesaid character also needs entering a license agreement with the right holder. Otherwise, there will be an infringement of the exclusive right of the right holder of the character.