The “life plus 70 years after the end of the year of death” rule for most copyright works means that each 1st January, many creative works fall into the public domain. This time Popeye creator Elzie Crisler Segar caught the…er… eye. But is the spinach muncher now fair game for use in ads? Carla Basso sounds a warning.
Topic: Intellectual property
When: 1st January 2009
Law stated as at: 29 January 2009
Popeye – the spinach eating, visually challenged, Depression-era cartoon character was created by Elzie Segar and first appeared in a comic strip in 1929. During the 1930s Popeye, his girlfriend Olive Oyl and his arch Nemesis Bluto were adapted into a successful and popular cartoon for Paramount Pictures which ran through to the late 1950s. He has since appeared in hundreds of comic books, TV cartoons, video games and ads in many different languages, been heavily merchandised, appeared in "The Simpsons" and "South Park", and Robin Williams even played him in live action movie in 1980.
But Popeye has now hit the headlines for being out of copyright. Under the UK's Copyright, Designs and Patents Act 1988 copyright has a fixed term depending on the type of work in which it subsists. For artistic works, such as cartoon characters, copyright expires 70 years after the end of the year in which its author dies. Since Segar died at the early age of 43, in 1938, this means that the Segar version of the Popeye drawings falls into the public domain in the UK as of 1st January 2009.
Public domain doesn’t' mean free-for –all
But this doesn’t mean a Popeye style free-for-all can commence for advertisers keen to attach the popular character to their products in global ad campaigns.
Firstly, the term of copyright protection varies from country to country. By virtue of EU harmonising directives, the rules are the same across the EU, but elsewhere local laws will apply. For example, it appears that copyright in the Segar drawings is still in force in the US until 2024, so advertisers who aim to distribute any Popeye related campaigns stateside should beware.
Secondly, later adaptations of the Segar drawings may still be in copyright – often publishers will extend copyright in a cartoon character by adapting it and creating a new copyright work, with a new term of protection. Care needs to be taken to ensure the correct "public domain" variant is being used.
Trade mark risk
Thirdly, the POPEYE word mark is registered in the UK by King Features Syndicate, Inc. (a subsidiary of Hearst Corporation) in various merchandising classes, and in the form of picture marks showing Popeye in various poses. Like any US company, they can be expected to proactively protect their trade marks against any unlicensed use on identical or similar products and services to those for which the marks are registered. King Features has previously licensed Popeye to Nintendo and others for use in video games, so they have a royalty income to protect against unauthorised use.
And finally remember that there will be a separate copyright in other works related to a cartoon character which may be considered for a campaign – for example the musical work comprised in Popeye's theme tune was written by Sammy Lerner in 1933 – so some clearance research would be required to determine whether that was still in copyright before using it in advertising.
Why this matters:
When considering using a fictional character in advertising it's crucial to consider rights clearance from the widest possible perspective – unauthorised use of a cartoon character may infringe both copyright and trade mark rights. Authors or their publishers may well have a range of registered trade marks protecting character name and catchphrases, and possibly pictorial representations of those characters. Even if clearance searches reveal no registered trade marks, the author/publisher may have built up substantial goodwill in the property over many years of publishing it, and advertisers risk a passing-off claim if the character is used to endorse their product without permission.
Since trade mark and copyright are national IP rights, advertisers also need to consider the infringement risks in all the different territories in which their advert is to appear – because Popeye or others are in the public domain in the UK won't necessarily mean that the same applies abroad, and in the case of the US for example, damages for infringement could well be higher than in the UK.