protecting kids characters Lisa Logan Partner Head of Media & Entertainment

how do creators protect their property? Copyright NDAs Registered trade marks Options Retaining rights in characters Retaining some rights and revenues in projects

common questions What can and cannot be protected- ideas, public domain works, orphan works, stories out of copyright Does the author need to copyright the contents too? What are the costs and procedures involved in trade marking the name of a character? At what stage should a creator involve lawyers?

confidentiality An author has worked on a property for 2 years, what should he/she do next before pitching their ideas?

websites Does having a website protect or expose IP? Does pitching put IP into the public domain, and is there a risk then of it being copied?

piracy If a creator sees content that is similar to theirs, should they presume it has been stolen?

subconscious copying of kids characters - Kerwhizz There is copyright in drawings of characters but how far are the elements of such characters protected? To amount to subconscious copying, the similarities must be striking When creating kids characters in an age where images online are prolific, it can be hard to ensure your animators, creators and production teams are creating your new kids programme independently. Subconscious copying evidence will need to be substantial and more than just a handful of possible coincidences Creators eager to show their drawings may place ideas online eg to obtain finance or commissions only to find elements used in very different series

Michael Mitchell-v-BBC The claimant, Michael Mitchell created drawings and a script for episode one for a kids TV programme called Bounce Bunch in Oct His drawings had been accessible online so could have been seen by the BBC team Conceived in 2005, the BBC developed, produced and then first broadcast Kerwhizz in November 2008

a comparison

Kerwhizz case Mitchell claimed copyright infringement over the characters that BBC denied, arguing the Kerwhizz characters were the result of independent design Side by side the characters looked different. Many similarities were at a high level of generality with some points to support the Claimant’s case: the armour with helmets and microphones, the colour scheme and the characters’ ethnic mixture. The blond hair quiff on the blue suited character stood out The court held whilst the similarities were not non- existent, they were at a high level of generality, a combination of features: armour, helmets, microphones, colour scheme, ethnic mixture and the blond quiff. It was not sufficient to support an inference of sub-conscious copying

subconscious copying In examining subconscious copying there were 3 elements to consider: the degree of familiarity with the Bounce Bunch (there was no evidence of familiarity by the BBC artists) the character of the work (did the Bounce Bunch have any memorable qualities (it was held the Bounce Bunch was simple and generic without memorable qualities) and the degree of objective similarity between Bounce Bunch and Kerwhizz (it was held although the degree of similarity required an explanation by the BBC it did not amount to similarities striking enough to amount to sub-conscioius copying.)

Lady Gaga/Lady Goo Goo Ate My Heart, the claimant (is the corporate vehicle of Lady Gaga and owner of her trade marks and right to exploit her rights) Mind Candy, the defendant, owner of the online children’s social networking game Moshi Monsters The child registers as a player, chooses a pet monster as part of the Game Lady Goo Goo is a parody in the game of Lady Gaga. The game also has Broccoli Spears (Britney spears), Banana Montana (Hanah Montana) and others D wanted to release a pop song The Moshi Dance sung by Lady Goo Goo, alleged to resemble Lady Gaga’s hit bad romance

song not allowed to be more widely released Injunction, upheld, line drawn between a kids online Moshi Monsters game as part of a social networking site aimed at children aged 6-12 years old Held the proposed wider release of the song by Lady Good could potentially cause confusion with Lady Gaga’s adult fans and may tarnish the reputation of Lady Gaga The lack of evidence of confusion and damage at this stage (4 million hits on YouTube) prior to a wider release was not determinative Interestingly the line was drawn so the D could continue to use the parody character in the kids online game Ref: Ate My Heart Inc v Mind Candy, Moshi Music Limited

questions

Lisa Logan Partner for Gateley LLP Head of Media & entertainment dt: +44 (0) df: +44 (0) m: +44 (0)