25 July 2018

In honour of last week’s edition of the Comic-Con event in San Diego, we have looked at some of the interesting IP issues surrounding the world’s most famous fantasy and sci-fi film buff gathering.

IP playground

Comic-Con now draws 130,000+ film and game fans from all over the globe to celebrate comics and popculture productions. Since its small beginnings in 1970, the organisers’ mission has been to raise the public’s appreciation of creative productions. With a strong focus on protecting its exhibitors’ invaluable IP and exclusive content - especially in times of online piracy - loyal attendees will know recording is strictly forbidden at Comic-Con. Productions featured at the convention are rich tapestries woven from copyright materials and design. For example, a superhero film sees a canon of comics reimagined as screen adaptations attracting fresh copyright protection in the visuals, the scripts, the film score and soundtrack. Likewise props and branded merchandise can also attract design protection.

A famous dispute in this field is the 2011 UK Supreme Court case involving Lucasfilm and the production company commissioned to design the iconic stormtrooper helmet from the Star Wars franchise. Lucasfilm sued the production company for selling replica helmets to fans and lost in the UK when the court ruled the helmet was not a ‘sculpture’ capable of copyright protection. The production company did not infringe and so could continue selling its helmets without a licence. Lucasfilm was, however, successful in the US and received USD $20 million in compensation.


Super marks

The convention centre is lined with merchandise stalls making it a valhalla for fans looking for exclusive collectibles of their favourite characters and franchises.
And where there is merchandise… there will be trade marks. A couple of quick searches on the UK and EU registers show that all our beloved fictional characters and Comic-Con mainstays, including BATMAN, GUARDIANS OF THE GALAXY, DOCTOR WHO and even HODOR are registered trade marks with protection for multimedia and publication services but also for any number of merchandisable goods such as toys, clothing, candy and stationery. Production houses use these registered rights as valuable assets in licensing deals to create another stream of revenue alongside the big blockbusters.

The Comic-Con organisation has not been spared some trade mark woes of its own. After three years, in December it obtained a favourable judgment for trade mark infringement against the Utah-based convention FanX Salt Lake Comic Convention, then “Salt Lake Comic Con”. FanX has since filed a motion for a retrial, leaving the case on a cliffhanger…

What about the fans?

Comic conventions are not only about the official content being released. It is also a great opportunity to showcase fan art. For instance, every year “fantroopers” continue to flood Comic-Con competing for the “cosplayer” titles, dressing up as a character from a film, book, or video game. “Homemade” superheroes, fairytale, videogame or other fictional characters and sometimes even famous props can all be seen.
Such creations can sometimes present an interesting dilemma for brand owners. Fan art or fan fiction may constitute a legal infringement, but should action be taken, risking losing goodwill and valuable fan engagement?

On the whole, events like Comic-Con, show an ever increasing existence, awareness and exploitation of IP rights in the entertainment sector. Marvel Studios, for instance, is a perfect example of a company using the value of its existing IP to develop: after years of struggling to get its big-ticket characters on the big screen, in 2004 Marvel reportedly exchanged its property and distribution rights to characters such as Ant-Man, The Avengers, Black Panther and Captain America in return for funding to make its own feature films. Since then, with its huge returns, Marvel has now not only managed to restore the rights to many of its valuable characters to the vault but has since been acquired by the Disney conglomerate in 2009.

But remember, with great IP comes great (policing) responsibility!

Laura Robyn

Laura Robyn

Trainee Trade Mark Attorney

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