“My goodness! I am ruined!! I never anticipated, oh my God!!!”
“What am I to do?”
Frederick was quite anxious; he started pacing up and down the room, wiping the
droplets of sweat from his forehead.
He overlooked his colleagues working delightfully. He
walked further towards the window of his cabin from where he could get a
picturesque view of the beach. It was a fine weather, cloudy and gloomy,
perfect for a good walk and hot samosas.
For some time the world around him went blank.
Just then entered Justin, his friend and business partner.
“Hi! Man, what’s up?” greeted Justin cheerfully.
Justin noticing his friend’s panic stricken demeanor asked
him, “What’s troubling you?”
“My dear Justin, no one knows me better than you”, said
Frederick in a shaky voice.
“What it is it?”
“I was going to call you myself.”
“Come on you are adding on to my anxiety. Tell me what it
is?” persuaded Justin in an irritated and impatient tone.
“It is …..Um….err…… what I want to say is ……” Frederick
kept mumbling and gaping for words, making Justin even more anxious.
“Come on tell it man”, snapped Justin losing every bit of
patience.
“Art Wonders possibly is going to come to an end. May be
all those outside this cabin may have to lose their jobs.”
“Oh no! For heaven’s sake tell me what happened. If
they’re going to lose their job so are we!”
“Look at this legal notice.”
Justin hastily grabbed the letter from Frederick’s hand
and looked at it.
“What?! From the Attorneys of Giant Riders Studios?”
“Yes, they claim that we need to pay them USD 5,000,000/-
for violating and exploiting their Intellectual Property Rights in
their character Veeru-The brainy kid such as copyrights,
industrial designs
and trademark.
They have asked us to close our website and stop all the sales of our products
infringing
their rights.”
Fredrick is a very talented artist. Since child hood he
has had a special liking towards caricature and cartooning. During his school
days he had made caricature of his teachers and fellow students and won
notorious reputation.
After obtaining a degree in fine arts and Diploma in web
designing, he could not think of a better career as he had a burning desire to
become an entrepreneur. This led to the rise of ‘Art Wonders’.
Art Wonders Pvt Limited is a Company
incorporated in India. Fredrik and Justin started initially as Partners
and recently converted it into a private limited company. Art wonders is an
e-commerce website.
His products include posters, t-shirts, mugs, mobile
cases, accessories, key chains, soft toys, toys, stationery such as pencil,
erasers, sharpeners, exam pads, and material for theme parties for kids,
containing caricaturesof
fictional movie characters, film heroes, heroines, cartoon characters, Sports
persons, Political Leaders and other famous personalities from various
backgrounds.
Fredrick’s inspiration to start such a venture was these
poster vendors on the beach side.
Whenever he went to the beach, these huge posters of popular film
personalities such as Rajinikanth,
Shipa Shetty,
Aishwarya Rai,
James Bond,Titanic
posters of Learnado De’caprio&Kate
Winslet,Avengers, and
Superman
etc., never failed to catch his attention.
He always felt awestruck seeing the large crowd of
children, young boys and girls buying them.
He was a great movie buff himself and has bought a few posters from their
which cost him not more than 20 Rupees. Considering the potential in this
business, combined with the passion for art, he employed all his skills and
came up with different products using caricatures of fictional movie
characters, film heroes, heroines, cartoon characters, etc.
He started earning quite well for his sketches/products
and became a favorite among the school and college students. His happiness knew
no bounds as his art was recognized and most importantly it was lucrative.
Justin was in for a shock hearing the amount quoted in the
notice. His heart almost skipped a beat. “My goodness, USD 5,000,000/- is it.”
“It
will definitely ruin us for sure.”
“What kind of mess have we got ourselves into!”
Both were silent, deeply shaken by the course of events
that had happened. Fell into deep thought.
Suddenly Justin yelled with a start.
“What’s all this man? I don’t understand all this row about
selling few caricatures of movie stars. What should we do now?” cried Justin
helplessly.
Frederick answered in a composed tone. “Look, now I think
we need to talk to a Lawyer.”
“You are right. That’s the best way to deal with the
situation or I would rather say that’s the only way to deal with the
situation.”
It was around 4.00 pm in the evening. Rishi and Anusha the partners and 3 other
associates Ram, Manju and Mathew were in a serious discussion over a recent
Trade Mark judgment by the Madras High Court.
The appointment for Fredrick and Justin was at 4.30 pm.
They were half an hour early at LegalTree.
Sara the receptionist greeted them with a welcoming smile.
“Hello sir, please be seated.”
Fredrick responded “I am Fredrick from Art wonders”.
Sara quickly glanced at the appointment dairy “Sir, your
appointment is at 4.30 p.m., you are half an hour early.”
“Why? is it difficult to meet the Lawyers now?” retarded
Justin in a requesting tone.
“Sir, the Attorneys are in a meeting. Let me check”, said
Sara politely and went to the conference room to inform their arrival.
Sara returned in a few minutes and informed them, “Sir,
they will see you now” and led them to the conference room.
The group was dispersing as Fredrick and Justin entered the
room.
Both the Partners Rishi and Anusha greeted them warmly.
Fredrick, without wasting any further time with
formalities quickly handed over the Notice from Giant Riders Studios to Anusha.
Anusha gave a quick reading of the notice and handed it
over to Rishi.
She immediately remarked “VEERU THE BRAINY KID” that’s a
famous movie. I am not quite sure whether it was Giant Riders Studios or White
Bug Films.
All right, Mr. Fredrick, the immediate course of action would
be to send a reply notice. Said Rishi.
But I am surprised that you boldly sold merchandise using
the character “VEERU”.
“Miss. Anusha, we did not know that such an act will lead
to such dire implications. We would not have done so if we had known”.
Rishi, after a quick reading of the notice, remarked
“There is a popular saying in law which says, “IGNORANCE OF LAW IS NOT AN EXCUSE”.
“Oh! We are unaware of that” said Fredrick and
Justin in a desperate tone.
“Fine, now let’s see how we can handle this
situation.”
“So, I believe you are selling your products
through a website; can I have a look at your website?” asked Rishi and pushed
the laptop towards Fredrick.
Fredrick opened his site www.artwonders.com and passed it on to
Rishi.
Rishi was taken aback having glanced at the
site and exclaimed, “My God! Anusha, just see this”.
Anusha, who was busy talking to Fredrick and
Justin, saw the website and was shocked too.
Both Anusha and Rishi looked at each other.
After a few seconds Anusha said, “I think you
people have still not completely understood what you are doing”.
“I find all your products bearing images of
characters from different movies of film heroes, heroines, cartoon characters,
Sports persons, Political Leaders and other famous personalities.”
“You have a mug with Batman, T-Shirt with
avengers and posters with caricatures of the famous TV serial “Friends”, a
mobile case with Rajinikanth’s image.”
“My goodness! all your products violate
intellectual property rights of one form or the other that belongs to various
people. There is not a single original thought or idea”.
“Mam, but all these caricatures are done by
me”.
“But the characters do not belong to you. You
are not the creator of those fictional characters. Only the creator of the
characters is allowed to use it in a way they like”.
“Whatever you are doing is called character
merchandising”.
“The kind of work you are doing can be called
derivative works, fan Art
or transformative works]”
“But, this is the first time I am receiving
such notice”.
“Just because the others didn’t take any
action, that does not mean your actions are right”.
“And using images of real persons like
Rajinikanth etc., amounts to infringing their personality rights”.
“Just imagine your fate if each and every one
whose IP you have infringed decide to take action against you asking exorbitant
amounts of compensation?”
Fredrick and Justin gaped with awe and looked
at each other, their stomachs churning.
“But, none of them are exploiting the
characters. We are the first ones to do it”.
“For example Chota Bheem,
Mickey Mouse etc.,”
“Just because, the authors are not using it
you cannot use it or it does not mean you can use it. They may use it in future. According to the
Copyright Act, 1957, the life of an artistic work
is Author’s life plus 60 years. If not them their successors can use it.”
“According to Section 14 (d) of the copyright
Act, the consent of the author is required to make a photograph (in
this case caricature of any image) of any image forming part of a cinematographic
film (Movie). Therefore it is mandatory to obtain their permission in the
form of license failing which will result
in breach. Another aspect to be discussed is the caricature of a famous film
personality. When the caricature is with respect to a film personality,
independent of the movie, it is important that their consent is obtained. Since
commercial exploitation of their image without their consent will lead to legal
implications”.
“Moreover since most of your art is inspired
from foreign movies, the laws in native country of the copyright owner may be
different from India and since it’s online, multi-jurisdictional issues may
rise leading to further complications which will be detrimental to your
business and also will lead to irrecoverable financial loss”.
“In my opinion obtaining a license or consent
by way of entering into necessary licensing agreement
with respect to the sale of your product seems to be the only solution.”
“Now, what are we to do? Please help us get
out of this problem.”
“The best thing to do is to respond
appropriately”.
“We will request for a negotiation with Giant
Riders Attorneys and see if we can settle this issue without taking it to the
court. Else, the cost of litigation will
be too high to bear for small players like you.
Legal Tree met M/s. Garner & Hugh, Giant
Riders Attorneys.
Finally after much
persuasion by Legal Tree, M/s. Garner & Hugh, Giant Riders Attorneys agreed
on a license agreement between Giant Riders and Art Wonders.
Fredrick and Justin could
relax finally after the two weeks of torment.
They thanked Anusha and
Rishi for helping them solve their problem
Anusha finally said,
“If you want to continue
with whatever you are doing and want to use the popularity of the characters
for your gain, it’s very important to obtain consent of the copyright owner or
you can use the ones in public domain.
The best thing would be to create your own characters using your intellect. Now
you know the worth of creating something. Once you create something original
and it becomes popular, you can exploit it by licensing to others like movie
studios, which can use the characters created by you in their movies. For
example Harry Porter
which was originally a character created by J.K.Rowling
in her famous Harry Porter book series which was made into motion pictures and
made J.K.Rowling a millionaire in no time.”
5 years later,
Art wonders sold their
character ‘PAKSHI – THE FLYING TREE’ to Giant Riders Studio, which was made in
to a motion picture
and many comics on this character were
also released by Art Wonders.
