Wouldn’t it be better to live in a fantasy world? A mushroom kingdom, for example.
Never fear! Nintendo are here to help. Not satisfied with taking you to the virtual world through your games console, and filling your home with plastic facsimiles, it seems as though the Nintendo Cinematic Universe has now invaded the multiplex (and the singles chart). What’s next? Nintendo theme parks?
Maybe wizards are more your sort of thing? Daniel Radcliffe might be well into his thirties now, but the Harry Potter movies are still driving streaming traffic to HBO Max, and if that wasn’t enough, there’s a new TV series in production, to go with the recently released Hogwarts Legacy and forthcoming Quidditch Champions to dive into on your PC. There’s even a deck-building co-operative board game to try out.
Nothing compares to the entertainment monolith that is the Walt Disney Company: Mickey Mouse; Woody and Buzz; Darth Vader; Iron Man; the blue alien chap from Avatar. Disney owns the lot. Hand over your cash, jump on the sofa, and lose yourself in Disney+. The House of Mouse has got you covered.
If you read the news, you’d be forgiven for thinking that multimedia properties of this ilk form the basis of the term ‘IP’. Ordinarily, I deal with the day-to-day processing of patent and design applications under the umbrella term of IP. However, I’ve recently been advising up-and-coming entertainment producers in the entertainment industry as to the benefits of IP protection, and it’s worth exploring how the IP strategies of the behemoths of film and television can provide guidance for anyone in the creative industries.
‘Hollywood’ IP
Intellectual Property is the category of property right that protects the intangible creations of the mind. Patents protect inventions, whereas designs protect the appearance of products. In the entertainment industry, however, the IP workhorses are copyright and trade mark registrations.
Copyright protects images, films, and audio, but can also give rise to character rights. You want to make a movie about a super-strong chap in blue and red with laser vision and the gift of flight? I don’t think so. I’ve just described Superman, and the recognisable features of the character give rise to copyright protection. The lawyers at DC Comics would be all over you; at least until 2034, that is when the Superman copyright is due to expire.
That’s a worry for DC, but of course, whilst Superman has (spoiler alert) died more than once, a well-kept trade mark is basically invincible. Even once the copyright expires, the trade mark can continue to run and run.
Multimedia giants can build huge portfolios of copyrights and trade mark registrations which can then be leveraged in many different ways, but the licensing of the various rights in a concerted manner is how the rewards can be reaped. Branded merchandising and toy sales are often how the most money is made; famously, Marvel threw the X-Men under the bus, claiming that their lucrative mutants were not human in order to claim tax benefits, contrary to the overriding theme of the comic books.
The Limits of IP
Amazon Prime Video viewers may recognise a different character in my description of Superman above. That would be Homelander from ultraviolent satire “The Boys”. Why hasn’t the book been thrown at the makers of the show?
This demonstrates the limits of character rights within the realm of IP. Evidently, Homelander is not Superman. The clue is in the name. There’s evidently no trade mark infringement as a result. Whilst there are similarities in the visual portrayal of the characters, they are visually distinct so as to be recognisable, so even though Homelander is a thinly-veiled pastiche or parody, he is not the same character, and therefore skirts around the edge of copyright protection.
If you are not setting out to use the same character, then you are unlikely to infringe copyright. Mimicry of an existing character on the other hand, as seen in the ongoing battle between Peppa Pig and Wolfoo, is likely to constitute infringement, as is clear unlicensed spin-off material, as the makers of the “Only Fools the (cushty) Dining Experience” found.
Leverage Your IP
The entertainment juggernauts of the world show how exploitation of existing characters can lead to huge rewards, by commercialising the IP associated with them via licensing, franchising, and protective action to keep infringers out of the same marketplace. It is exactly the same principle as for patents, albeit with far more outrageous characters. This explains why there is a constant drive towards world-building in a lot of entertainment sectors, so that existing IP can be leveraged in profitable ways. It doesn’t always work out though, as the collapse of Universal’s ‘Dark Universe’ shows; maybe Dracula and the Mummy weren’t meant to co-exist after all.
The interest in IP led entertainment does show how great rewards can coalesce around a single coherent vision, if the right steps are taken to protect what you have created. Those who saw me speak at the AudioUK panel on IP at this year’s Podcast Show will understand that copyright arises automatically in the expressions of creative works, and gives you something licensable. Securing trademark registration for brands and logos is the next step for budding content creators.
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